Judge: Joseph Lipner, Case: 23STCV07916, Date: 2024-02-20 Tentative Ruling

Case Number: 23STCV07916    Hearing Date: February 20, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Nancy Le and Diego Rivera (collectively, “Defendants”) move to quash the service of summons and complaint in this action.

The Court GRANTS Defendant’s motion.

Background

This appears to be a contract action. Plaintiff, who is self-represented seeking reimbursement for services that he allegedly provided to Defendants.

Defendants visited Los Angeles in February 2021 partially for the purpose of looking for a vacation home. (Le Decl. ¶ 8; Rivera Decl. ¶ 8.) Defendants rented a house through Airbnb and believed that Plaintiff was the owner of the home. (Le Decl. ¶ 9; Rivera Decl. ¶ 9.) Plaintiff offered Defendants numerous services, but Defendants contend that they did not accept them. (Le Decl. ¶ 10; Rivera Decl. ¶ 10.)

Defendants contend that Plaintiff later lived in a property that Defendants owned without permission, changed the locks, and changed the utilities into Plaintiff’s name, resulting in Defendants obtaining a restraining order against Plaintiff. (Le Decl. ¶¶ 11-13; Rivera Decl. ¶¶ 11-13.)

Plaintiff filed this action on April 11, 2023, seeking $42,450 for services allegedly performed for Defendants, comprised of $27,500 for house rental for 16 days, $1,200 for car rental, $2,300 for transportation to and from the airport, $3,000 for hair services, $450 for maid services, and $8,000 for personal assistant services.

On August 23, 2023, Plaintiff filed an “Amended Statement of Claim,” seeking $118,050 for services allegedly rendered to Defendants. This amount was comprised of $79,250 for home rental services, $11,450 for the usage of two cars, $2,300 for transportation to and from the airport, $3,300 for hair services, $450 for maid services, and $21,600 for personal assistant services.

Plaintiff filed a second “Amended Statement of Claim” on November 16, 2023. Therein, Plaintiff alleged the same damages, as well as the existence of a contract under which Plaintiff provided the alleged services. Plaintiff also alleged that the contract provided that Plaintiff would be a 50% owner of a residential property purchased by Defendants.

On November 16, 2023, Plaintiff filed a proof of service as to Defendants (the “November POS”). On December 14, 2023, Plaintiff filed a second proof of service as to Defendants (the “December POS”).

Defendants moved to quash service on December 18, 2023. Plaintiff does not oppose the motion.

Legal Standard

Without valid service of a summons, the court never acquires jurisdiction over a defendant. Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant. (Code Civ. Proc., §418.10, subd. (a)(1).) Code of Civ. Proc. §418.10 authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint. If the motion is timely made, “no act” by the party making such motion, “including filing an answer, demurrer or motion to strike,” shall be deemed a general appearance. (Code Civ. Proc., §418.10, subd. (e)(1).)¿ 

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.) “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390 [internal citation omitted]; Evid. Code, § 647.) 

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.

(Code Civ. Proc., § 415.20, subd. (b).)¿

“Reasonable diligence” is usually defined as two or three attempts at personal service. (Espindola v. Nunez¿(1988)¿199 Cal.App.3d 1389, 1392.)  

Discussion

Defendants each aver that they were never personally served with the summons or complaint. (Le Decl. ¶ 2; Rivera Decl. ¶ 2.) Defendants similarly declare that they never received the summons and complaint by mail or from anyone at their place of business, home, or other location. (Le Decl. ¶¶ 3, 7; Rivera Decl. ¶¶ 3, 7.)

On November 16, 2023, Plaintiff’s process server attempted to serve Defendants’ attorney, Jake Babcock at the Darvish Firm, APC office. (Babcock Decl. ¶ 4.) The Darvish Firm, APC is not authorized to accept service of process on behalf of Defendants, and Babcock informed the process server as such. (Babcock Decl. ¶¶ 3, 7.) The process server left papers at the Darvish Firm, APC office that did not include the summons or the ADR package. (Babcock Decl. ¶ 9.)

The November 16, 2023 Proof of Service

The November POS has a number of defects. The November POS represents that the process server served the complaint, summons, and ADR package on Defendants both by personal service and by substitute service. However, the section for personal service does not contain a date or time of service, and the section for substituted service does not contain a time of service or indicate who the documents were served on. Further, Plaintiff does not attach a declaration of reasonable diligence showing that personal service was attempted at least two or three times prior to substituted service. Thus, the November POS is defective.

The December 14, 2023 Proof of Service

          The December POS remedies some of the defects of the November 16 POS, stating that personal service occurred on August 20, 2023 at 2 p.m. and that substituted service occurred on November 16, 2023 at 12 p.m.

          There are still issues that arise in the December POS, however.

          First, as discussed above, Defendants flatly declare that they were never personally served in this action. (Le Decl. ¶ 2; Rivera Decl. ¶ 2.)

The addresses of service listed are “531 Maertel Ave Los Angeles Ca 90036 & The Darvish Firm APC 12424 Wilshire Blvd # 1115 Los Angeles Ca 90025 & Stay Awhile Villas 9437 Santa Monica Blvd Suits 204 Beverly Hills Ca[.]” The proof of service does not clarify who was served at which addresses and when.

Defendants contend that 531 Martel Avenue, Los Angeles, CA 90036 (“531 Martel”) is a house that is an investment property for Defendants, but it is not their usual place of abode, usual place of business, or usual mailing address. (Le Decl. ¶ 4; Rivera Decl. ¶ 4.) Thus, 531 Martel is not one of the enumerated locations where substituted service can be effected under Code of Civil Procedure, section 415.20, subd. (b). Finally, Plaintiff does not set forth that the process server thereafter mailed a copy of the complaint or summons to Defendants, as required by the statute. Thus, the December POS is defective as to any substitute service conducted 531 Martel.

Defendants contend that 9437 S. Santa Monica Boulevard, #204, Beverly Hills, CA is the location of the property manager for Defendants’ investment property. It is not Defendants’ usual place of abode, usual place of business, or usual mailing address. (Le Decl. ¶ 5; Rivera Decl. ¶ 5.) Finally, Plaintiff does not set forth that the process server thereafter mailed a copy of the complaint or summons to Defendants. Thus, it is not an enumerated location for substituted service.

          Finally, as discussed above, the Darvish Firm APC was not authorized to accept service on Plaintiff’s behalf, and Jake Babcock therefore rejected service. (Babcock Decl. ¶¶ 3, 7.) Although the December POS states that James Brink was also served, Brink avers that no one ever attempted to serve process on Defendants through him. (Brink Decl. ¶ 4.) Nor was substituted service at the firm office appropriate, as it is not Plaintiff’s usual place of abode, usual place of business, or usual mailing address. (Le Decl. ¶ 6; Rivera Decl. ¶ 6.) Although the process server left documents at the firm office, those documents critically did not include the summons. (Babcock Decl. ¶ 9.)

Additionally, as above, Plaintiff does not set forth that the process server thereafter mailed a copy of the complaint or summons to Defendants.

For these reasons, the December POS is defective.

The Court therefore grants Defendants’ motion to quash service of process.