Judge: Gary I. Micon, Case: 23CHCV03809, Date: 2024-07-16 Tentative Ruling

Case Number: 23CHCV03809    Hearing Date: July 16, 2024    Dept: F43

Dept. F43

Date: 7-16-24

Case #23CHCV03809, Glow Med Spa, Inc., vs. Bela, Inc.

Trial Date: N/A

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant Bela, Inc.

RESPONDING PARTY: Plaintiff Glow Med Spa, Inc.

RELIEF REQUESTED

Defendant has requested that the Court quash the service of summons.

RULING: Motion is denied.

SUMMARY OF ACTION

This case, filed on December 14, 2023, is related to a dispute involving the unauthorized commercial use of a likeness and trademark dilution. Plaintiff Glow Med Spa, Inc., (Plaintiff) filed proof of service on January 11, 2024. The proof of service indicates that Defendant Bela, Inc., (Defendant) was served via substituted served on January 9, 2024. The process server indicates that the documents were left with an employee of Defendant at Defendant’s office or usual place of business. After that, the process server indicates that the documents were mailed on January 10, 2024.

On February 7, 2024, Defendant filed its motion to quash service of summons. On April 2, 2024, Plaintiff filed a second proof of service that indicates that the process server served the complaint on Defendant’s agent for service of process via personal service on March 14, 2024.

The sole basis for Defendant’s motion to quash is that it cannot be served because it is a terminated legal entity. Plaintiff argues in its opposition, filed on July 2, 2024, that courts still have jurisdiction over terminated legal entities; that the case law cited by Defendant is a mix of unpublished opinions and superior court cases; and that Plaintiff’s service of process was valid.

Defendant has not filed a reply to Plaintiff’s opposition.  

ANALYSIS

The return of process is prima facie evidence of proper service. (Evidence Code § 647; Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) Where proof of service exists, the burden is then on the other party to produce evidence that they were not, in fact, served. (See Evidence Code § 604; Palm Property Investments, LLC v. Yadegar 194 Cal.App.4th 1419.) Simply denying receipt of service is not sufficient to overcome the presumption of service. (Palm Property, 194 Cal.App.4th at 1428.)

Plaintiff has filed proofs of service that are prima facie evidence of service, including both the original substituted service and subsequent personal service. Defendant has not produced evidence that it was not served. Instead, Defendant argues that it cannot be served because it is a terminated legal entity. In support of this argument, Defendant cites two unpublished cases, which have no precedential value. (See Cal. Rules of Court Rule 8.1115(a).) The first is Chang v. City of Upland (Cal. Ct. App., June 25, 2009, No. E046204) 2009 WL 1816645. Even if this case held some persuasive value, it does not appear to stand for the proposition that terminated entities cannot be sued. The crux of Chang was that the Plaintiff failed to name certain defendants in her complaint. It is not applicable to the current case. The same can be said for Turner v. Hertz Corporation (Cal. Ct. App., May 30, 2014, No. F065250) 2014 WL 2432891, which Defendant cites but only deals with whether an estate was properly served.

Furthermore, Plaintiff cites authority in its opposition that supports its argument that terminated entities may be served. Plaintiff cites Cal. Corp. Code § 2010(a), which states, “A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations…” Additionally, Corp. Code § 2010(b) states, “No action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof.” Claims may be asserted against a dissolved corporation irrespective of whether they arose before or after dissolution, and the corporation remains liable. (See Corp. Code § 2011(a).) Based on these code sections, Defendant was properly served, regardless of whether it was a terminated entity, as terminated entities may still sue or be sued.

Plaintiff also argues that Defendant is still an active business because it continues to run a website (See Farivar Decl., ¶ 11, Ex. E), but even if it were not an active business, Plaintiff could still maintain an action against it.

Because Defendant was properly served, regardless of its active status, then Defendant’s motion to quash service of summons is denied.

Moving party to give notice.