Judge: Gail Killefer, Case: 22STCV32689, Date: 2024-01-04 Tentative Ruling
Case Number: 22STCV32689 Hearing Date: January 4, 2024 Dept: 37
HEARING DATE: Thursday, January 4, 2024
CASE NUMBER: 22STCV32689
CASE NAME: Sergio Camacho, et al. v. William Sydney “Tray” Prevost III
MOVING PARTY: Special Appearing Defendant Sydney
“Trey” Prevost, III
OPPOSING PARTY: Plaintiff Sergio Camacho, et al.
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Motion to Quash Service of
Summons and Complaint
OPPOSITION: 20 December 2023
REPLY: 27
December 2023
Background
On October 3, 2022, Sergio Camacho, Philip Saada, Esther Cohen on
behalf of and as Administrator for The Estate of Jack Cohen, Ralph Cohen, on
behalf of and as a Representative of the Estate of Jack Cohen, and Tower 26,
Inc. (collectively “Plaintiffs”) filed a Complaint against William Sydney
“Trey” Prevost III (“Defendant”) for (1) Breach of Fiduciary Duty, (2) Fraud,
(3) Conversion, and (4) Unjust Enrichment.
On July 13, 2023, Plaintiff filed a proof of service by personal
service on Defendant.
On September 29, 2023, the Defendant filed a Motion to Quash the
Service of Summons and Complaint. Plaintiffs oppose the Motion. The matter is
now before the court.
I. Legal Standard
CCP § 418.10 subdivision (a) states: “A defendant, on or
before the last day of his or her time to plead or within any further time that
the court may for good cause allow, may serve or file a motion…[t]o quash
service of summons on the ground of lack of jurisdiction of the court over him
or her.”¿¿¿
A court of this state may exercise jurisdiction on any basis
not inconsistent with the California or United States Constitutions. (CCP §
410.10.) When a nonresident defendant challenges personal jurisdiction, the
burden shifts to the plaintiff to demonstrate by a preponderance of the
evidence that all necessary jurisdictional criteria are met. (Jewish Defense
Org. v. Superior Court¿(1999) 72 Cal.App.4th 1045, 1054-55; see also
Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568 [“When a motion
to quash is properly brought, the burden of proof is placed upon the plaintiff
to establish the facts of jurisdiction by a preponderance of the evidence.”].)
This burden must be met by competent evidence in affidavits and authenticated
documentary evidence. (Jewish Defense Org., at p. 1055.)
II. Discussion
CCP § 418.10 states
in relevant part:
A defendant, on or before the last day of
his or her time to plead or within any further time that the court may for good
cause allow, may serve and file a notice of motion for one or more of the
following purposes:
(1) To quash service of summons on
the ground of lack of jurisdiction of the court over him or her.
Plaintiffs argue that
because Defendant had actual notice of this action, Defendant waived the right
to file a motion to quash because the Motion was not filed “on or before the
last time of his or her time to plead.” (CCP § 418.10.) Instead, the Defendant
waited months to file the Motion.
Defendant argues that
because Plaintiffs failed to properly serve Defendant, the fact that Defendant
had actual notice of the action is insufficient to uphold service. (Summers
v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“[N]o California appellate
court has gone so far as to uphold a service of process solely on the ground
the defendant received actual notice when there has been a complete failure to
comply with the statutory requirements for service”].)
The fact that Defendant
believes that Plaintiffs’ service of process was improper does not excuse
Defendant’s failure to timely file this Motion. “Failure to make a motion under this
section at the time of filing a demurrer or motion to strike constitutes a
waiver of the issues of lack of personal jurisdiction, inadequacy of process,
inadequacy of service of process, inconvenient forum, and delay in
prosecution.” (CCP § 418.10(e)(3).)
Nevertheless, the court finds
that “good cause” exists to extend the filing deadline of this Motion because
the Defendant’s counsel was negotiating with Plaintiffs’ counsel a date to file
a responsive pleading. (Martinez Decl. ¶¶ 4-6, Ex. B.) However, as no response
had been provided, Defendant proceeded to file this Motion. (Martinez Decl. ¶
6.) Accordingly, the court finds that Defendant has not waived the right to
challenge the service of process.
“[T]he filing of a
proof of service creates a rebuttable presumption that the service was proper”
but only if it “complies with the statutory requirements regarding such
proofs.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426. 1441-1442.) The Plaintiffs’ proof of service states that a copy of the
summons and Complaint were personally served on the Defendant at 11649 Amanda
Dr., Studio City, CA 91604 on Tuesday, December 13, 2022. (Proof of Service
filed 7/13/2023.) The process server described the person served as a Causation
Male between the ages of 45-50 with brown hair and brown eyes, and with
glasses. (Ibid.)
Defendant asserts
that he was not personally served, and no copy of the summons and Complaint was
mailed to him. The Defendant’s declaration, signed under penalty of perjury,
states that he resides at 11637 Amanda Drive not 11649 Amanda Drive.
(Prevost, III Decl. ¶ 2.) Defendant asserts his neighbor Salvatore, resides at
11649 Amanda Dr. (Id. ¶ 3.)
Moreover, Defendant asserts that he has “blonde/dirty blonde hair and
blue eyes” and has never worn glasses. (Id. ¶ 4.) As proof, he attaches
a copy of his drivers’ license. (Id. Ex. 1.) Defendant asserts that
several days after the alleged service took place, his neighbor Salvatore
handed him the service of summons and Complaint and informed Defendant that the
papers had been left by Salvatore’s front door at an unknown time. (Id.
¶ 6.)
Plaintiffs argue that
on four separate occasions, Plaintiffs attempted to serve Defendant at the
11637 Amanda Dr. address. (Singh Decl. ¶ 4.) However, as established above,
that is not Defendant’s residence. Moreover, Plaintiffs fail to present
admissible evidence that the Plaintiffs tried to have the Defendant served at
the 11649 Amanda Dr. Address, as the attached emails are hearsay and there is
no declaration by the process server who attempted service at the 11649
address. Moreover, the Plaintiffs do not dispute the content that there was no
attempt at substitute service. (CCP § 415.20(b).)
“Knowledge by a defendant of a
plaintiff's action does not satisfy the requirement of adequate service of a
summons and complaint. [Citations.] When, as here, there is a complete failure
to comply with statutory requirements, there can be no substantial compliance
with those statutory or due process requirements. [Citation.]” (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th
1145, 1152–1153.) Here, Plaintiffs have failed to present evidence that
Defendant was personally served or that they substantially complied with the
requirements for service of process.
Accordingly, the Defendant’s Motion is granted.
Because Defendant’s Motion is granted, no responsive pleading
or extension is needed, since the service of summons is quashed. As Defendant has
failed to articulate a basis for dismissing this action, the court denies the
request for dismissal and grants Plaintiffs’ request for a 30-day extension to
serve Defendant.
Conclusion
Defendant’s Motion to Quash
Service of Summons and Complaint is granted. Plaintiffs are given 30 days to
file a new proof of service.