Judge: Helen Zukin, Case: 22SMCV01417, Date: 2022-10-18 Tentative Ruling

Case Number: 22SMCV01417    Hearing Date: October 18, 2022    Dept: 207

Background

Plaintiff Douglas Emmet 1997, LLC (“Plaintiff”) brings this unlawful detainer action against Defendant Ruttenberg IP Law (“Defendant”) concerning commercial real estate owned by Plaintiff and located at 1801 Century Park East, Suite 1920, Los Angeles, California 90067. Defendant now brings this motion to quash Plaintiff’s service of process upon it, arguing Plaintiff failed to effect proper service on it. Plaintiff opposes Defendant’s motion. Defendant has not filed a reply.

Request for Judicial Notice

Plaintiff requests the Court take judicial notice of the proof of service filed by Plaintiff in this action on September 6, 2022. Plaintiff’s request is unopposed and is GRANTED. (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 790 n.10.)

Legal 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. . . .” (C.C.P. § 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.)

“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

Analysis

Defendant argues it was not properly served as required by the Code of Civil Procedure. On September 6, 2022, Plaintiff filed a proof of service purporting to establish substitute service on Defendant through a receptionist at Defendant’s office named Alex on August 25, 2022.

Code Civ. Proc. § 415.20(b) allows for substitute service “by leaving 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 other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.”

Plaintiff’s proof of service indicates service was made on Alex as “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served” by registered process server Cesar Hernandez-Govea. The proof attaches a declaration of mailing from Cynthyia Lopez, who states she mailed the service documents to Defendant on August 25. Plaintiff’s opposition includes a further declaration from Ms. Lopez stating she “placed copies of the summons and complaint in an envelope and mailed it to the Defendant” on August 25, “with postage prepaid by United States First Class Mail.” (Lopez Decl. at ¶ 5.)

Defendant argues this service was deficient because Guy Ruttenberg, Defendant’s president, was not the one served. Defendant argues Mr. Ruttenberg is “the only authorized agent for service of process” for Defendant. (Ruttenberg Decl. at ¶ 3.) However, this argument ignores the language of Code Civ. Proc. § 415.20, which specifically authorizes service on “a person apparently in charge” of Defendant’s place of business. Defendant has submitted no evidence suggesting the receptionist “Alex” referenced in the proof of service could not be deemed a person apparently in charge for purposes of Code Civ. Proc. § 415.20(b). Accordingly, the Court does not find Plaintiff’s service to be deficient because it was not served on Mr. Ruttenberg directly.

Defendant also argues the service was deficient because he did not receive a copy of the service documents in the mail. Defendant argues this shows the mailing requirement of section 415.20(b) was not satisfied here. The Court rejects this argument as well. As set forth above, the proof of service contains a declaration from a registered process server. A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647; Evid. Code § 641.) This presumption is rebuttable. (Id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 ["If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact."].) Merely denying service took place without more is insufficient to overcome the presumption. (Yadegar, supra, 194 Cal.App.4th at 1428.)

Mr. Ruttenberg states “We have not received a copy of those documents in the mail.” (Ruttenberg Decl. at ¶ 4.) The Court does not find this statement, standing alone, is sufficient to overcome the presumption supported by the proof of service and declaration from Ms. Lopez. The Court notes under Code Civ. Proc. § 415.20(b), service “is deemed complete on the 10th day after the mailing” of the documents. Nothing in section 415.20(b) makes service contingent on the receipt of the mail by the person or entity being served, rather the act of mailing itself is sufficient to satisfy section 415.20(b). Plaintiff here has put forth evidence establishing the documents were mailed as required by statute. Mr. Ruttenberg’s statement that he did not receive the documents in the mail is not dispositive as to whether the documents were ever mailed. Accordingly, the Court finds Plaintiff has established Defendant was properly served pursuant to Code Civ. Proc. § 415.20(b) and DENIES Defendant’s motion to quash.

Conclusion

Defendant’s motion to quash Plaintiff’s service of summons is DENIED.