Judge Latrice A. G. Byrdsong, Case Number: 23STLC08127, Date: 2024-03-07 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STLC08127, Date: 2024-03-07 Tentative Ruling

Case Number: 23STLC08127 Hearing Date: March 7, 2024 Dept: 25

Hearing Date: Thursday, March 07, 2024

Case Name: DELBERT CANNON v. WESTWOOD/LINDBROOK PARTNERS LLC FKA WESTWOOD/LINDBROOK PARTNERS, LTD., LP; J&J HOSPITALITY GROUP LLC; CHIRAG SHAH; AND DOES 1-10,

Case No.: 22STLC08127

Motion: Motion to Quash Service of Summons and Complaint

Moving Party: Special Appearing Defendant Chirag Shah

Responding Party: Plaintiffs Delbert Cannon

Notice: OK

Tentative Ruling: Special Appearing Defendant Chirag Shah’s Motion to Quash Service of Summons is DENIED.

Defendant Chirag Shah’s answer is ordered to be filed within twenty (20) days of notice of this Court’s ruling.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed as of February 13, 2024 [ ] Late [ ] None

REPLY: Filed as of February 26, 2024 [ ] Late [ ] None

BACKGROUND

On December 21, 2023, Delbert Cannon (“Plaintiff”) filed a cause of action against Defendants Westwood/Lindbrook Partners LLC fka Westwood/Lindbrook Partners, Ltd., LP (“Westwood”), J & J Hospitality Group LLC (“J & J Hospitality”), and Chirag Shah (“Shah”) (“Special Appearing Defendant”) (collectively “Defendants”) for violation of the Unruh Civil Rights Act.

On January 03, 2024, Defendant Shah made a special appearance to file the instant Motion to Quash Service of Summons and Complaint.

Defendant J & J Hospitality filed its Answer to Plaintiff’s complaint on January 18, 2024.

Plaintiffs’ files in opposition to the instant motion. Special Appearing Defendant files in reply.

MOVING PARTY POSITION

Defendant Shah prays for an order from the Court to quash Plaintiffs’ purported service of summons and complaint under CCP §§ 415.10. Defendant Shah argues that the summons and complaint were improper as summons was not personally served on Defendant Shah or in any other lawful manner consistent with CCP 415.10.

OPPOSITION

In opposition, Plaintiff argues that the motion should be denied as substituted service was properly effectuated on Defendant Shah’s business address, which additionally serves as Shah’s usual address, consistent with CCP § 415.20(b). Plaintiff asserts that Shah’s argument lacks merit as a matter of law as nothing in CCP § 415.20(b) requires a person being handed with summons be authorized to accept service on defendant’s behalf. Plaintiff points out that the address at which service was effected is the same address reported as Shah’s usual mailing address and as his usual place of business. Moreover, the address also is listed as Shah’s address on his website and is registered with the Secretary of State as both Shah’s usual mailing address and place of business.

REPLY

In reply, Shah reasserts that the Court should grant his motion to quash, arguing that Plaintiff completely ignores that CCP § 415.20 applies only to service required under CCP §§ 416.60, 416.70, 416.80, or 416.90. Shah further asserts that Plaintiff has failed to carry his burden of showing that proper service was made on Shah, re-emphasizing that he never authorized anyone to accept service on his behalf.

ANALYSIS

I. Legal Standard

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

“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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service. (Code of Civ. Proc. § 418.10(a)(1). A defendant has 30 days after the service of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20(a)(3).)

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

“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. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647.)

II. Discussion

Defendant Shah argues that Plaintiff’s service of summons and complaint is defective in so far as it has not provided him with actual notice of the instant action against him.

Defendant states in his sworn declaration that he learned around December 29, 2023, that the secretary of Haney & Shah, LLP, Rehevelow Shiao, received the Complaint. Defendant avers that Ms. Shiao was not authorized to accept service on his behalf nor has he authorized anyone employed at Haney & Shah, LLP to accept service on his behalf. (Chirag Shah Decl. ¶¶ 3, 5.) Defendant further declares that at no point was he served, personally or otherwise. (Id. ¶ 4.) Defendant additionally provides the declaration of managing partner for Haney & Shah, LLP, who additionally swears that Ms. Shiao is not authorized to accept service on behalf of any individuals. (Steven H. Haney Decl. ¶ 2.) Finally, Defendant provides the declaration of Ms. Shiao who also swears that she was not authorized to receive service. (Rehevelow Shiao Decl. ¶ 2.)

CCP § 415.10 provides that “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” (Code Civ. Proc. § 415.10.)

Further CCP § 415.20(b) provides,

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.

(Code Civ. Proc. § 415.20(b) (emphasis added).)

Finally, CCP § 416.90 provides that, “A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” (Code Civ. Proc. § 415.20).

Here, the Court finds that Plaintiff has carried his burden that service was properly rendered. Plaintiff filed a proof of service by substituted service for Defendant Shah which included a declaration of diligence stating actions taken first to attempt personal service. (Proof of Substituted Service 1/4/2024). The declaration noted two unsuccessful attempts to serve Defendant Shah personally at his usual place of business at 1055 West 7th Street, Suite 1950, Los Angeles, CA 90017, on 12/26/2023 and 12/28/2023, prior to the substituted service. (Id.) The substituted service provides that service was made on “Rev Shiao – Paralegal” who was “a person at least 18 years of age apparently in charge at the office or usual place of business” of Defendant Shah, and that she was informed of the general nature of the papers. (Id.) Despite While Defendant provided evidence that Ms. Shiao was not authorized to receive service on Defendant’s behalf, CCP § 415.20(b) does not require that substituted service be made on “a person authorized” by Defendant Shah. As such, Plaintiff’s substituted service on Defendant Shah complies with CCP § 415.20(b).

CCP § 415.20(b) further requires that service be made on a person apparently in charge when leaving a copy of the summons and complaint at the person’s office or usual place of business. Here, Ms. Shiao is identified as a paralegal. (Proof of Substituted Service 1/4/2024). As such, service on Ms. Shiao was service on a person whose relationship with Defendant Shah makes it more likely than not that she would deliver process to him. (See Ellard v. Conway, 94 Cal. App. 4^th 540 (2001)). Indeed, Defendant Shah acknowledges that service “was given… in this matter through a person handing the Complaint to Haney & Shah, LLP's secretary, Rehevolew Shiao.” (Motion, p. 3; Shah Decl. ¶ 3; Shiao Decl. ¶ 2). For the foregoing reasons, Plaintiff’s substituted service on Defendant Shah was proper under CCP § 415.20(b).

Accordingly, the Motion to Quash Service of Summons is DENIED.

III. Conclusion

Special Appearing Defendant Chirag Shah’s Motion to Quash Service of Summons is DENIED.

Defendant Chirag Shah’s answer is ordered to be filed within twenty (20) days of notice of this Court’s ruling.

Moving party is ordered to give notice.