Judge: James L. Crandall, Case: 20-1174964, Date: 2022-10-13 Tentative Ruling

Motion to Quash Service of Summons

Plaintiff/Cross-Defendant WM Wholesale, LLC’s (WM) Motion to Quash Service of Summons and First Amended Cross-Complaint on Cross-Defendant James Clelland (Motion) is GRANTED.

The court SUSTAINS objections 1-3 and 6-10 and OVERRULES the remaining objections in WM’s Objections to Declaration of Christopher Engels, filed 10-6-22 under ROA No. 150.

A defendant may move to quash service of summons on the ground the court lacks jurisdiction. (Code Civ. Proc., § 418.10, subd. (a)(1).)

“[I]t is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.” (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Int’l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

Code of Civil Procedure section 415.20 states:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(c) Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.

Rodriguez v. Cho (2015) 236 Cal.app.4th 742, 750 states: “A plaintiff may serve individual defendants through substitute service when they cannot be personally served with reasonable diligence. (§ 415.20, subd. (b); [citation] …“Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘ “reasonable diligence.” ’ ” [citation.”

WM moves to quash the Proof of Service of the First Amended Cross-Complaint on James Clelland (Clelland) filed by Leffel on 5-31-22 (POS). According to the POS, Clelland was personally served with the Summons and First Amended Cross-Complaint on 5-9-22 at 1:50pm at 2804 Gateway Oaks Dr, 100, Sacramento, CA 95833.

WM represents that this is the address for Paracorp, Incorporated (Paracorp), its authorized agent for service of process.

Timeliness

Code Civ. Proc. § 418.10(a) provides in pertinent part: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: ¶ (1) To quash service of the summons on the ground of lack of jurisdiction of the court over him or her…”

Leffel argues that the Motion must be denied as untimely pursuant to Code of Civil Procedure section 418.10(a) Because Clelland “was served on May 9, 2022” through Paracorp and the instant motion was filed 51 days later on 6-29-22. (Opposition, 5.) According to Leffel, WM’s Motion is almost 2 months late because Frost admits to receiving WM’s service through Paracorp “through a link” on 5-9-22. (Id.)

In reply, WM contends that the Motion is timely because it was filed on 6-29-22, within 30 days from the date the POS was filed on 5-31-22. (Reply, 3-4.)

The parties dispute through this Motion whether or not Clelland was actually served on 5-9-22. The POS at issue was filed on 5-31-22, and the Motion was filed on 6-29-22, within 30 days from the date of the POS.

Further, while Code of Civil Procedure section 418.10, subdivision (a) states on its face that a party may file a motion to quash service of summons within the “time to plead,” it also states that a motion to quash is permitted in “any further time that the court may for good cause allow.”

Based on the procedural history behind this Motion, the court finds that the Motion is timely and will evaluate the merits of the parties’ arguments.

Merits

WM contends that service of Summons and First Amended Cross-Complaint (FACC) must be quashed as to Clelland for the following reasons: (1) Clelland was not served on 5-9-22, (2) Leffel has not demonstrated that he engaged in “reasonable diligence” as required under Code of Civil Procedure section 415.20 before serving Clelland by personal service, (3) Leffel has not demonstrated that Paracorp was authorized to accept service on behalf of Clelland.

In opposition, Leffel contends that service on Clelland was appropriate for the following reasons: (1) the Declaration of Due Diligence, filed 9-28-22 under ROA No. 142, states that Paracorp had checked and indicated they could accept service for Clelland, (2) Leffel had engaged in other previous attempts to serve Clelland which constituted reasonable diligence.

The Declaration of Thomas Frost (Frost Declaration) in Support of Motion states:

“On May 23, 2022, I received an email from Leffel’s counsel, Chris Engels, inquiring whether I would accept service on behalf of Clelland, who had not yet been served with the Summons and FACC. On May 27, 2022, I responded that I was not authorized to accept service on behalf of Clelland. In response, Mr. Engels’ co-counsel, Sean Janzen, emailed me and requested Mr. Clelland’s address “so [they could] dispatch service to that location.” (Frost Decl., ¶ 5, Exhibit 1.)

“On June 27, 2022, our office was reviewing the Court’s Register of Actions in this matter and discovered that, on May 31, 2022, Leffel filed or cause to be filed a Proof of Service of Summons, purporting to have served Clelland on May 9, 2022, at “2804 Gateway Oaks Dr, 100, Sacramento, CA 95833.” (See ROA No. 136.)” (Frost Decl., ¶ 6, Exhibit 2.)

The Declaration of Christopher Engels in Support of Opposition (Engels Declaration) states: “Aside from serving Clelland on 5/9/2022, at Paracorp, to date Leffel has diligently attempted to serve Clelland at (3) three different locations. The first attempt was at Clelland’s business WM Wholesale office location at 1007 Grove St. Suite B, Orange, CA 92865 which is listed on the California Secretary of state on 5/11/2022, 5/12/2022, 5/13/2022, 5/16/2022, and 5/17/2022. Leffel also tried serving Clelland at a last known address found through a private investigator located at 4009 Layang Layang Circle #I Carlsbad, CA 92008, on 5/19/2022.

Finally, Leffel has attempted to serve Clelland at a last known address found through a private investigator located at 410 E. Oak Street Ojai, CA 93023, on 5/21/2022.” (Engels Declaration, ¶ 6, Exhibit B.)

“On May 23, 2022, I emailed Frost ensuring that he received the Summons and FACC that was served upon Clelland through Paracorp on May 9, 2022. It was my hope then that he would reply by stating that he has already received service on May 9, 2022.” (Engels Declaration, ¶ 7, Exhibit C.)

The Declaration of Due Diligence, filed 9-28-22 under ROA No. 148 states on page 2:

I received the within process on 5/6/22 and that after due and diligent effort I have been unable to personally serve said party. The following itemization of the dates and times of attempts details the efforts required to effect personal service…

PARTY SERVED: James Clelland, an individual.

(1) Business: 2804 Gateway Oaks Dr, 100, Sacramento,, CA 95833.

As enumerated below:

On 6/9/22 12:14PM Statement from Affiliate. James Clelland does not work for Paracorp, although they looked him up in their system and they are listed as the agent for service for James Clelland and accepted service.

The Declaration of Due Diligence is signed by “Tyler Anthony DiMaria,” registered California process server, who also signed the POS.

Based on the foregoing, the court first finds that the Declaration of Due Diligence, filed on 9-28-22, does not constitute admissible evidence that Paracorp was authorized to accept service on behalf of Clelland. Leffel’s opposition offers no explanation for why the “Statement from Affiliate” section is dated 6/9/22, after the purported date of service. There is also no foundation for the statement that Paracorp was authorized to accept service because it had alleged checked its “system” and determined as such.

Second, the court finds that the Non-Service Reports, attached as Exhibit B to the Engels Declaration, do not demonstrate that Leffel engaged in reasonable diligence to effectuate personal service on Clelland before attempting to serve him by substituted service.

The Non-Service Reports contain dates of attempted service from 5-11-22 to 5-21-22, all of which are after 5-9-22, the date that Clelland was allegedly served by serving Paracorp as indicated on the POS. Because Leffel was required to engage in reasonable diligence prior to attempting substituted service, the Non-Service Reports are insufficient to demonstrate such reasonable diligence.

Therefore, because Leffel has not demonstrated that he engaged in reasonable diligence to personally serve Clelland before attempting substituted service or that Paracorp was authorized to accept service on behalf of Clelland, WM’s Motion is GRANTED.

Sanctions

Leffel requests sanctions of $10,000 against Clelland and Frost pursuant to Code of Civil Procedure section 1209(a)(9) on the grounds that they are intentionally attempting to evade service.

The court finds that sanctions are not warranted under Code of Civil Procedure section 1209(a)(9), as Leffel’s Opposition does not demonstrate that Frost, WM or Clelland engaged in any attempts to evade service. Therefore, Leffel’s request for sanctions is denied.

In summary, Plaintiff/Cross-Defendant WM Wholesale, LLC’s (WM) Motion to Quash Service of Summons and First Amended Cross-Complaint on Cross-Defendant James Clelland (Motion) is GRANTED.

The 5-31-22 POS is ordered quashed.

WM is to give notice.

Future hearing dates

1/27/23 – MSC

2/27/22 – Jury Trial