Judge Lynette Gridiron Winston, Case Number: 24PSCV02689, Date: 2024-11-20 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV02689, Date: 2024-11-20 Tentative Ruling

Specially Appearing Defendant Irwaz Trust’s Motion to Quash Service of Summons

The Court GRANTS specially appearing Defendant Irwaz Trust’s motion to quash service of summons. The summons served on Irwaz Trust on August 30, 2024, is hereby QUASHED.

Defendant Irwaz Trust is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a nuisance and abatement action. On August 20, 2024, plaintiffs City of Azusa and People of the State of California by and through the City of Azusa (collectively, Plaintiffs) filed this action against defendants Irwaz Trust, Edin Barvid Darwish, Adat 1, LLC (collectively, Defendants) and Does 1 through 50, alleging causes of action for public nuisance and public nuisance per se.

On October 1, 2024, Defendant Irwaz Trust moved to quash service of the summons. On November 6, 2024, Plaintiff opposed the motion. Irwaz Trust did not reply.

A defendant may move to quash service on the ground that the court lacks jurisdiction by filing a noticed motion to quash the service of summons at any time before the expiration of its time to plead. (Code Civ. Proc., § 418.10, subd. (a)(1).) When a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has the burden of proving the facts that did give the court jurisdiction, that is, the facts requisite to an effective service. (Code Civ. Proc., § 418.10; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 [upon a defendant’s motion to quash, “the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction”.]) Once the plaintiff establishes facts showing minimum contacts with the forum state, “it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Ibid.)

Defendant Irwaz Trust moves to quash service of the summons on the grounds that the proof of service shows service was completed on Irwas[1] Trust, who is not alleged to be a trustee or an agent authorized to accept service on behalf of Irwaz Trust. Irwaz Trust contends that as a trust, it is a non-existent entity upon which service cannot be effected. Irwaz Trust contends the complaint references a trust deed that indicates Adat I, LLC is the trustee of Irwaz Trust, and that the proof of service does not identify who the holder of the private UPS mailbox here. Irwaz Trust contends the proof of service does not demonstrate service was performed in accordance with Code of Civil Procedure section 415.20.

In opposition, Plaintiffs contend they substantially complied with the service requirements under Code of Civil Procedure section 415.20. Plaintiffs contend the process server properly effectuated service by delivering the complaint to Irwaz Trust’s usual mailing address and leaving it with the person apparently in charge. Plaintiffs contend that because Irwaz Trust holds the private UPS mailbox, Adat 1, LLC as trustee holds the box, and therefore service was properly effected. Plaintiffs also cite Code of Civil Procedure section 416.70, which allows service on a guardian, conservator, or similar fiduciary, and that it would not make sense to serve Irwaz Trust at Adat 1, LLC’s registered address for service. Plaintiffs also note that Adat 1, LLC’s address on file does not comply with its statement of information, and also contend that Irwaz Trust’s motion demonstrates actual notice of the complaint. Plaintiffs contend they properly served Irwaz Trust with the complaint. Plaintiffs further contend that Irwaz Trust did not timely set the motion within 30 days per Code of Civil Procedure section 418.10, and that the caption on the complaint omitting the title of trustee to Adat 1, LLC is a non-prejudicial error.

The Court finds Plaintiffs did not properly effect service on Irwaz Trust. Since Plaintiffs attempted to effect service on Irwaz Trust at a private mailbox through a commercial mail receiving agency i.e., UPS, Plaintiffs needed to demonstrate compliance with Code of Civil Procedure section 415.20, subdivision (c), which code provision incorporates Business and Professions Code section 17538.5, subdivision (d), by reference. (Code Civ. Proc., § 415.20, subd. (c); Bus. & Prof. Code, § 17538.5, subd. (d).) Service at a private mailbox through a commercial mail receiving agency is available when it is the only reasonably known and available address for effecting service. (Code Civ. Proc., § 415.20, subd. (c).) Plaintiffs appear to have demonstrated this, as they indicate having attempted service at an address listed on Adat 1, LLC’s statement of information that is no longer good. (Gunzel Decl., ¶ 7, Ex. B.)

However, service under Code of Civil Procedure section 415.20, subdivision (c), requires the owner or operator of the commercial mail receiving agency to undertake additional steps, such as placing a copy of the summons and complaint in the customer’s mailbox within 48 hours of receiving those documents and then mailing those documents within five days’ receipt to the last known home or personal mailing address of the customer. (Code Civ. Proc., § 415.20, subd. (c); Bus. & Prof. Code, § 17538.5, subd. (d).) The owner or operator of the commercial mail receiving agency must then obtain a certificate of mailing of those documents. (Ibid.) Plaintiffs have not presented any evidence that this occurred. (See generally, Gunzel Decl.; Code Civ. Proc., § 418.10; Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 449 [plaintiff bears initial burden of proof on motion to quash].)

With respect to whether the matter is properly captioned, that is not an issue Irwaz Trust raised in its moving papers. However, the Court nevertheless finds that Adat 1, LLC has not been properly sued in its capacity as trustee for Irwaz Trust. Contrary to Plaintiffs’ assertion, the complaint is not clearly directed at Adat 1, LLC in its capacity as trustee for Irwaz Trust. (See generally, Compl.) At most, there is a grant deed attached to the complaint listing Adat 1, LLC as trustee for Irwaz Trust, but that does not clearly demonstrate Plaintiffs are suing Adat 1, LLC in its capacity as trustee. (Compl., Ex. A.) In fact, the Court notes that the summons itself does not even designate Adat 1, LLC that it is being sued in its capacity as trustee for Irwaz Trust. (Summons (8/20/24).) This is fatal. If a defendant is being sued in a representative capacity, the summons and complaint must identify the capacity in which the defendant is being served and then serve the defendant in that capacity; otherwise, the Court lacks jurisdiction to enter a judgment against the defendant in that capacity. (See Bank of Am. Nat. Tr. & Sav. Ass'n v. Carr (1956) 138 Cal.App.2d 727, 736.)

With respect to the requirement that a motion to quash must be set for a date within 30 days of filing the notice of motion, the Court understands that such dates are not always available when reserving a motion, and therefore declines to deny the motion on those grounds. (See Code Civ. Proc., § 418.10, subd. (b); Cal. Rules of Court, rule 3.1300, subd. (d).)

The Court GRANTS specially appearing Defendant Irwaz Trust’s motion to quash service of summons. The summons served on Irwaz Trust on August 30, 2024, is hereby QUASHED.

Defendant Irwaz Trust is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] This is not a typo. The moving papers spell Irwaz with a “z” and an “s”. (Motion, 4:22-23.) The proof of service also shows both spellings. (Proof of Service (9/4/24), ¶ 3.)