Judge Latrice A. G. Byrdsong, Case Number: 23STLC08146, Date: 2024-05-20 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STLC08146, Date: 2024-05-20 Tentative Ruling

Case Number: 23STLC08146 Hearing Date: May 20, 2024 Dept: 25

Hearing Date: Monday, May 20, 2024

Case Name: JOHN JURANEK, an individual v. LILY VALENTINE, an individual, and PRIVATE LABEL PARTNERS, Inc. a corporation; and DOES 1-50

Case No.: 23STLC08146

Motion: Motion to Quash Service of Summons and Complaint

Moving Party: Defendant Lily Valentine

Responding Party: Plaintiff John Juranek

Notice: OK

Tentative Ruling: Defendant Lily Valentine’s Motion to Quash Service of Summons and Complaint is GRANTED.

BACKGROUND

On December 22, 2023, Plaintiff John Juranek (“Plaintiff”), filed a complaint against Defendants Lily Valentine (“Defendant”), and Private Label Partners, Inc. and Does 1 through 50 for (1) breach of contract, (2) negligence, (3) common counts: money had and received, and (4) restitution.

Now, Defendant Valentine moves to quash service of the summons and complaint.

MOVING PARTY POSITION

Defendant Valentine moves to quash service of the summons, arguing that Defendant served her at a shipping center through the store clerk. First, Defendant argues that Cal BPC Code § 17538.5 was improperly cited as a purported means of substitute service. Much more importantly, Plaintiff’s service of process upon a Commercial Mail Receiving Agency (“CMRA”) is a flagrant violation of the California Code of Civil Procedure. Cal. Code Civ. Proc. § 415.20(c) provides: “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.” However, the Proof, on its face, proves that Plaintiff made no attempts to determine whether the address of the CMRA was the “only address reasonably known” for Ms. Valentine. Tellingly, the “declaration of diligence stating actions taken first to attempt personal service” is blank, even though “415.20” is cited in the Proof as the grounds upon which service was made. Simply skipping to service upon a CMRA without evidence that the Plaintiff did not know any other address for Defendant Valentine is improper.

OPPOSITION

In opposition, Plaintiff argues that service was proper on Valentine because the subject mailbox is subject to and under the conditions of a 1583 mailbox, and Defendant’s motion is not a special appearance and not under CCP 418.10 as required, therefore Defendant is consenting to personal jurisdiction and service. Defendant’s business, Private Label Partners, has a mailbox at this location. That mailbox is registered under both Private Label Partners and Valentine. That mailbox is a registered 1583 mailbox, and like all 1583 mailboxes, the company holding the box is allowed to accept service on behalf of the mailbox owner. Defendant cites Cal BPC Code § 17538.5, claiming that Plaintiff’s Proof “fails to allege that Defendant Valentine (1) was not required to and did not disclose her residence address; (2) noted her residence address in a USPS Form 1583, and (3) signed an acknowledgement allowing this CMRA to accept service of process on her behalf.” Motion p. 1 lines 27-28- p. 2 lines 1-2. Yet, Defendant was required to do each of those things when they have a registered 1583 mailbox. When Plaintiff had done a cursory internet search, it was revealed that there was a 1583 mailbox found and registered by both Defendant Private Label Partners and Defendants Valentine. When both Defendants registered themselves to the 1583 mailbox, they both had consented to the company holding the box to accept service on behalf of the mailbox owner.

Plaintiff also argues that Defendant claims Plaintiff made no attempts to determine whether the CMRA agent was the only address reasonably known for Defendant Valentine, and alleges that as an entity doing business, Plaintiff should have been aware of other addresses. Motion p. 2, lines 16-27. Defendant neglects to reveal, however, that her business is not registered with the California Secretary of State, so service on the business at this address of the CMRA is proper.

REPLY

None filed as of May 16, 2024.

ANALYSIS

A. 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 . . . .” (Code Civ. Proc., § 418.10, subd. (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 pp. 1441-1442.)

No motion under CCP § 418.10 “shall be deemed a general appearance by the defendant.” (CCP § 418.10(d).) Here, Specially Appearing Defendant (“Defendant”) brought this motion under CCP § 418.10. Thus, filing this motion does not constitute a general appearance.

1. Untimely Opposition

Plaintiff’s Opposition is untimely. Plaintiff’s Opposition was filed on May 13, 2024. Pursuant to Code of Civil Procedure section 1005, subdivision (b), Plaintiff’s Opposition was due nine (9) court days before the scheduled May 20, 2024 hearing date, which was May 7, 2024. (Code Civ. Proc., § 1005, subd. (b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.”].) However, the Court will exercise its discretion in considering the merits of Plaintiff’s Opposition.

2. Motion to Quash

Defendant Valentine argues that the service of the summons and complaint should be quashed because the summons was improperly served and therefore the Court lacks personal jurisdiction.

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 the facts requisite to an effective service. Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.

Here, Plaintiff has not met that burden.

Plaintiff filed a proof of service as to Defendant Valentine on March 7, 2024, indicating Defendant was served on February 21, 2024. The proof of service indicates Defendant was served by substitute service pursuant to Code of Civil Procedure § 415.20, which provides:

(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 (corporation), 416.20 (trustee of corporation), 416.30 (joint stock company or association), 416.40 (unincorporated association), or 416.50 (public entity), 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.

CCP § 415.20, bold emphasis added.

To meet his burden, Plaintiff must offer admissible evidence – generally declarations by competent witnesses – supporting the jurisdictional facts. Buskirk v. Buskirk (2020) 53 Cal.App.5th 523, 534-535.

To the extent that Plaintiff served Defendant under Code of Civil Procedure section 415.20(a), Plaintiff was served as an individual, and thus that section does not apply.

As noted above, there is a statutory exception to the “reasonable diligence” requirement if the “only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency.” CCP § 415.20(c). Under those circumstances, “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.” Ibid. Here, however, Plaintiff has offered no evidence that the CRMA address was the “only address reasonably known” for Defendant Valentine. Likewise, Plaintiff’s counsel’s declaration only attests to looking for Defendant Private Label Partners’ information on the Secretary of State’s website (Hodroff Decl., ¶ 2), but otherwise makes no mention of any attempts to find Defendant Valentine’s address. Although Plaintiff’s counsel says when searching, his firm discovered Defendant Valentine had a Form 1583 mailbox (Hodroff Decl., ¶ 4), Plaintiff must first show that this was the only address reasonably known for Valentine. Moreover, Valentine declares that the company she works for engaged in a business relationship with Plaintiff and Plaintiff is aware of that company’s address. (Valentine Decl., ¶ 4.) Plaintiff does not dispute this.

Although not argued by Plaintiff, to the extent that Plaintiff served Defendant under Code of Civil Procedure section 415.20(b), Plaintiff has not offered any evidence of “reasonable diligence” in attempting to serve Defendant personally. The substituted service statute allows for substituted service when a party "cannot with reasonable diligence" perform personal service on another party. Code Civ. Proc., § 415.20, subd. (b).¿ Courts universally define "reasonable diligence" as two or three attempts at personal service, and state that this satisfies the requirements to try substituted service instead. Espindola v. Nunez¿(1988)¿199 Cal.App.3d 1389, 1392. “[T]he demonstrated will of the Legislature must be obeyed by requiring strict compliance with the provision requiring reasonable diligence to accomplish personal service before a secondary means of service is permitted.” Evartt v. Superior Court¿(1979) 89 Cal.App.3d 795, 801. “[P]ersonal delivery must be attempted in all cases where an alternative method of service is used.” Burchett v. City of Newport Beach¿(1995) 33 Cal.App.4th 1472, 1473. Actual notice of the action alone, is not a substitute for proper service and is not sufficient to confer jurisdiction." American Express Centurian Bank v. Zara (2011) 199 Cal.App.4th 383, 392. The registered process has not filed a declaration as to diligence. “[T]he burden is upon the plaintiff to show reasonable diligence to effect personal service.” Evartt, supra, 89 Cal.App.3d at 801.

Conclusion

Accordingly, the motion to quash service of summons is GRANTED.

Plaintiff to give notice.