Judge: Helen Zukin, Case: 21SMCV01430, Date: 2022-09-06 Tentative Ruling

Case Number: 21SMCV01430    Hearing Date: September 6, 2022    Dept: 207

Background

Plaintiffs Gregory Mancuso and Rainier AG (collectively “Plaintiffs”) bring this action against several Defendants, including Defendant Consul Group re Dos Mil Vientiuno S.R.L. (“Consul” or “Defendant”). Plaintiff Rainier AG is a brokerage company and Gregory Mancuso is a corporate compliance office for Rainier AG. The dispute between the parties stems from a Brokerage Agreement entered into between Rainier AG and Consul in October 2018. Plaintiffs allege Consul began a pattern of unusual and suspicious trading behavior shortly after entering in the Brokerage Agreement. Plaintiff alleges it conducted an investigation which revealed stock manipulation and conversion by Defendants. Consul previously brought an action in federal court alleging causes of action stemming from the relationship between Consul and Rainier AG. Plaintiffs allege this federal action was frivolous.

On December 15, 2021, Consul filed a First Amended Cross-Complaint (“FACC”) against several Cross-Defendants, including Lidia Zinchenko (“Cross-Defendant”). Cross-Defendant specially appears to bring this motion to quash service of the Cross-Complaint on her. Consul opposes the motion.

Motion to Quash Standard

“A defendant . . . 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. . . .” (Code Civ. Proc., § 418.10(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[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.”¿ (Id.¿at 1441-1442.)¿ When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”¿ (Coulston v. Cooper¿(1966) 245 Cal.App.2d 866, 868.)¿ “A court lacks jurisdiction over a party if there has not been proper service of process.”¿ (Ruttenberg v. Ruttenberg¿(1997) 53 Cal.App.4th 801, 808.)¿

An individual may be served by delivering summons and complaint to someone authorized to accept service on his or her behalf. (See CCP § 416.90; American Express Centurion Bank v. Zara, (2011) 199 Cal. App. 4th 383, 389.) Such authority may be actual or implied, such as where a defendant causes it to appear that another has been authorized to accept service on his or her behalf. (See Warner Bros. Records, Inc. v. Golden West Music Sales, (1974) 36 Cal. App. 3d 1012, 1018.) Because the plaintiff has the burden of establishing valid service of process when it is contested by a defendant, the plaintiff bears the burden of showing the party served was the defendant's ostensible agent for service of process. (Lebel v. Mai, (2012) 210 Cal. App. 4th 1154, 1163.)

Analysis

Consul has filed three proofs of service purporting to establish service of process on Cross-Defendant. These proofs, filed on June 7, August 11, and August 23, all reflect the same service event: Consul’s purported service by mail on Cross-Defendant, at 2627 S. Ocean Boulevard., Highland Beach, Florida. Consul argues these proofs demonstrate Cross-Defendant was properly served pursuant to Code Civ. Proc. § 415.40. Cross-Defendant argues Consul’s attempted service by mail was defective as Cross-Defendant does not reside at the 2627 S. Ocean Boulevard address.

Code Civ. Proc. § 415.40 provides for service of process on an out-of-state defendant “by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt.” Under Code of Civ. Proc. § 417.20(a), where a nonresident is served by mail pursuant to section 415.40, the proof of service must “include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.” “[T]he California statutory scheme (Code Civ. Proc., §§ 415.40 and 417.20 read together) permits completion of service by mail when the return receipt is signed by a person so authorized by the defendant.” (Neadeau v. Foster (1982) 129 Cal.App.3d 234, 236-237.)

Cross-Defendant has submitted uncontested evidence establishing she was not present at the S. Ocean Boulevard address “as a resident or otherwise, from January 2022 to the present.” (Zinchenko Decl. at ¶ 3.) Cross-Defendant also submits the evidence from the property manager of the property located at the S. Ocean Boulevard address corroborating Cross-Defendant’s statement that she does not reside at or lease the property located at that address and further stating the property “has been unoccupied from at least January 2022 to the present date.” (Roberts Decl. at ¶ 4.)

Consul has submitted the tracking history from the United States Postal Service showing the envelope was delivered on June 16, 2022. (Ex. 4 to Micheli Decl.) Consul also attaches the certified mail return receipt card for the mailing, which confirms delivery at the subject address on June 16, 2022. (Ex. 5 to Micheli Decl.) However, in light of the evidence submitted by Cross-Defendant, the Court finds Consul has failed to demonstrate this mailing was properly sent to the “person to be served” under Code Civ. Proc. § 415.40 or actual delivery to the person to be served under Code Civ. Proc. § 417.20. Neither the tracking history nor return receipt card indicate to whom the service package was delivered, or even whether the package was delivered to a resident of the 2627 S. Ocean Boulevard address. The Court notes the tracking history provided by Consul indicates delivery was made to an unidentified “individual” in Boca Raton, Florida after delivery was attempted at the subject address in Highland Beach, Florida. Similarly, the return receipt card is incomplete as no boxes were checked to indicate whether service was made on Cross-Defendant or an agent, or whether the package was delivered to the 2627 S. Ocean Boulevard address or some other location. While the card is signed, the signature is illegible.

As Consul has not established Cross-Defendant was properly served by mail at the 2627 S. Ocean Boulevard address, Cross-Defendant’s motion to quash is GRANTED.

Conclusion

Cross-Defendant Lidia Zinchenko’s Motion to Quash Service of Process is GRANTED.