Judge: Gary I. Micon, Case: 24CHCV02337, Date: 2024-11-18 Tentative Ruling

Case Number: 24CHCV02337    Hearing Date: November 18, 2024    Dept: F43

Dept. F43

Date: 11-18-24

Case # 24CHCV02337, Buchanan v. Bagdasarian, et al.

Trial Date: None set.

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant David Bagdasarian

RESPONDING PARTY: None.

RELIEF REQUESTED

Quash Plaintiff’s service of summons and complaint.

RULING: Motion is granted.

SUMMARY OF ACTION

Plaintiff filed this case on June 18, 2024, alleging violations of the Fair Employment and Housing Act, the Unruh Civil Rights Act, the Los Angeles Municipal Code, the Unfair Business Practices Act, and a negligence claim.

On July 29, 2024, Plaintiff filed a proof of service stating Defendant was served a summons and complaint via substituted service on July 5, 2024.

On August 16, 2024, Defendant filed a motion to quash service of summons.

As of November 13, 2024, no opposition has been filed.

ANALYSIS

Judicial Notice

Defendant asks the Court to take judicial notice of Plaintiff’s Proof of Substituted Service, filed July 29, 2024. (RJN, at p. 2.) The Court grants Defendant’s request.

Quash Service of Summons and Complaint

A defendant may file and serve a notice of motion to quash service of summons on grounds that the court lacks jurisdiction, e.g., because service was improper. (Code Civ. Proc., § 418.10, subd. (a); see, e.g., Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 433 [defendant filed motion to quash on ground that service on corporation was defective because it did not comply with Code Civ. Proc., § 410, now § 412.30]; County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 446 [defendant filed motion to quash on ground that service was defective because summons did not specify date for answering and appearing].)¿The defendant must attach evidence such as affidavits and declarations to support its motion. (See Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 563.) 

“On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.” (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657-658.) 

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” (Code Civ. Proc., § 415.10.) To serve a summons and complaint by substitute service, the plaintiff must (1) leave a copy of the summons and complaint “at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address”; (2) with “a competent member of the household or a person apparently in charge of the [person’s] office, place of business, or usual mailing address” who is at least “18 years of age”; and (3) mail a copy of the summons and complaint to the person to be served at the place where a copy of the summons and complaint were left. (Code Civ. Proc., § 415.20, subd. (b).)

A dwelling house or abode means a place one holds out as their principal residence. (Rovinski v. Rowe (6th Cir. 1942) 131 F.2d 687, 689 [noting appellant “paid for and had listed a telephone in his own name at that home; that he kept some clothing and odds and ends there; that there was always a bedroom ready for his occupancy when he returned home and that he invariably occupied it; and that he was unmarried and maintained no other household of his own. He conceded that he never voted elsewhere than in the State of Michigan”].)

Summary of Arguments

Defendant argues the Court should quash the summons in this matter because Plaintiff never served him. Defendant states that on July 5, 2024, Plaintiff served the summons at property located at 12112 Hoyt St., Sylmar, CA 91342 (Hoyt St.) via substituted service. (Declaration of David Bagdasarian [Bagdasarian Decl.], ¶ 2.) Defendant asserts neither he nor any member of his family has ever resided on this property. (Bagdasarian Decl., ¶¶ 2-3.) Defendant owns and leases the Hoyt St. property to tenants. (Bagdasarian Decl., ¶ 2, Exh. 1, at p. 1.) Defendant has never authorized his tenants to accept any mail on his behalf at the Hoyt St. property. (Id. at p. 5.) Defendant does not receive mail at the Hoyt St. property. (Bagdasarian Decl., ¶ 7.) Defendant was never personally served with the summons and complaint. (Ibid.) No member of Defendant’s household was ever served by substituted service with a summon and complaint at the Hoyt St. property. (Ibid.) Defendant asserts Plaintiff’s proof of service erroneously states she served a “co-resident,” who was a competent member of Defendant’s household.

In Trackman v. Kenney, the Court of Appeal found that service was proper where a process server’s declaration stated she attempted to personally serve the defendant at the defendant’s property on three separate dates without success. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185.) The Court held the process servers three attempts satisfied the service requirements because the process server eventually served the papers with an apparent co-resident—an individual who apparently lived at the address—and the process server served the documents at the publicly listed home and business address of the defendant. (Ibid.)

Here, the process server went to the Hoyt St. property on July 3, 4, and 5, 2024. (RJN, at p. 4.) On the 3rd and the 4th, she was unable to access the address because of a private fence. (Ibid.) On the 5th, the server encountered “an Individual who identified themselves as the resident” and stated that Defendant resides at the Hoyt St. property. (Ibid.) The process server served the summons and complaint on this individual and mailed a copy of the summons and complaint to the Hoyt St. property. (Id. at p. 2.)

The Court notes that the lease agreement attached to Defendant’s motion states that the address of owner’s representative “for notice purposes” is 12112 Hoyt St., Sylmar, CA 91342. (Bagdasarian Decl., Exh. A, at p. 10.) However, Plaintiff fails to oppose the motion or otherwise challenge Defendant’s declaration.

Accordingly, the Court grants Defendant’s motion to quash service of summons.

Conclusion

The motion is granted.

Moving party to give notice.