Judge Holly J. Fujie, Case Number: 23STCV11085, Date: 2024-04-26 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Defendant Serpik requests that the Court grant his Motion to Quash on the grounds that the substitute service was defective. Defendant asserts that Plaintiff failed to exercise reasonable diligence in attempting personal service, and that Plaintiff was aware, or easily could have learned, where Mr. Serpik resides as it is a matter of public record. (Serpik Decl. ¶ 2.) Defendant states that Plaintiff relied on an address of a large office building that houses many businesses, only one of which is the law firm that employs Mr. Serpik. (Serpik Decl., ¶ 3.) Defendant states that since Mr. Serpik works from home and rarely comes to the office, he was unaware of Plaintiff’s attempts to effectuate service at the office. (Serpik Decl., ¶ 4.) Defendant states that Plaintiff cannot claim “reasonable diligence” to personally serve Mr. Serpik where her process server repeatedly returned to a business address where Mr. Serpik was clearly not present.

Further, Defendant states that even if Plaintiff had exerted reasonable diligence to effect substituted service, the address at which substituted service was attempted was not Serpik’s usual place of business because he works from home and does not frequent the office where the substitute service was attempted. Defendant states that although this office location is listed as his place of business on the State Bar website, this is insufficient for establishing it as his usual place of business for service purposes. Defendant challenges Plaintiff’s reliance on this address because she should have made reasonable efforts to discover his actual usual mailing address or place of business rather than depending on an address merely associated with his employer.

In opposition, Plaintiff contends that he exercised reasonable diligence in attempting to personally serve Mr. Serpik. Plaintiff points to the declaration of the process server, Behrouz Sarbarziha, who states that he made several unsuccessful attempts to serve Defendant at the address listed on the California State Bar website on May 19, 22, and 23, 2023. Following these attempts, on May 24, 2023, the receptionist at Mr. Serpik’s office stated she could accept service on his behalf, which led to him being sub-served. On the same day, Plaintiff’s attorney, Kousha Berokim, emailed Mr. Serpik confirming that he had been served through his office. Plaintiff argues that there is no legal requirement to first attempt service at a defendant’s home and that the law merely requires showing reasonable diligence to effect personal service.

In reply, Defendant argues that Plaintiff failed to properly verify his “usual place of business” for the purposes of service, under Code of Civil Procedure § 415.20(b). Rather than serving Mr. Serpik at his residence, where he was most likely to receive actual notice, Defendant notes that the process server made multiple unsuccessful attempts at an address listed on the California State Bar website and did not confirm whether this address was indeed Mr. Serpik’s usual place of business. Further, Defendant states the proof of service indicates that the documents were left at the main front desk of the building, not directly with Mr. Serpik or at a verified place of his business.

When a defendant challenges jurisdiction by bringing a motion to quash, the burden is on the plaintiff to establish jurisdiction by proving, by a preponderance of evidence, the facts requisite to an effective service. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4^th 1126, 1131.)

Reasonable diligence is typically satisfied where there are “two or three attempts to personally serve a defendant at a proper place” [Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392], or there are a “number of honest attempts to learn defendant’s whereabouts or his address by inquiry” and use of public records. (Board of Trustees of the Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 337.)

Strict compliance with the statutes governing service is not required. “In deciding whether service was valid, the statutory provisions regarding service of process ‘should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.’ [Citation.] Thus, substantial compliance is sufficient.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1436-1437.)

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to . . . the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].) However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs. (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)

Based on the facts presented, the Court finds the proof of service by Behrouz Sarbaziha to be sufficient to establish the presumption that service was proper as to Defendant. Mr. Sarbaziha made three attempts to personally serve Defendant at his place of business before serving the receptionist, a white woman with light hair, 30 years old, 5’5’’, 130 lbs.

Defendant fails to rebut the presumption as he does not provide any evidence establishing that 6100 Center Dr. Ste 1100 Los Angeles, California 90045 is not his address or place of business. Defendant claims that he works from home and rarely comes to the office such that he was unaware of Plaintiff’s attempts to effectuate service, but this is insufficient to show that this was not Defendant’s “dwelling house, usual place of abode, usual place of business, or usual mailing address.” (CCP § 415.20, subd. (b).) Further, although Defendant claims that Plaintiff was aware, or easily could have learned of Defendant’s residence, as it is a matter of public record, Defendant provides no authority that requires a plaintiff to serve a defendant in his residence. Additionally, Defendant did not establish that he is no longer associated with the address served or did not have actual knowledge of the suit. Therefore, there was substantial compliance and actual notice of service on Defendant. (See Dill, supra, 24 Cal.App.4th at p. 1437 [“when the defendant is an individual, that individual is the person to be served, and evidence that the mailed summons actually reached that individual is sufficient to establish valid service, even though the summons had been signed for by someone who did not have authority to do so”].)

The Court declines to rule on Plaintiff’s evidentiary objections as Plaintiff failed to file them separately. (See California Rules of Court rule 3.1354 subd. (b) [“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.”] A trial court acts “well within its discretion in overruling the objections for failing to meet these standards.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1118.)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court