Judge: Mark A. Young, Case: 23SMCV05958, Date: 2024-03-05 Tentative Ruling

Case Number: 23SMCV05958    Hearing Date: March 5, 2024    Dept: M

CASE NAME:           Leibel v. Ample LLC, et al.

CASE NO.:                23SMCV05958

MOTION:                  Motion to Quash Service of Summons

HEARING DATE:   3/5/2024

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. . . .” (CCP § 418.10(a).) A court lacks jurisdiction over a party if there has not been proper service of process. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) “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.)  The plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].)  

“[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 1441-1442.)

Analysis

            Defendants Warner Bros. Entertainment Inc., Warner Bros. Discovery Inc., and David Zaslav (collectively, the “WB Defendants”) move to quash service of summons.  The WB Defendants argue that Plaintiff did not effectuate valid service as to any of the defendants.

      To effectuate service on a corporation, summons may be delivered to the agent for service of process or to the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process. (CCP, § 416.10(a), (b).) Code of Civil Procedure section 415.20(a) permits substituted service on a person specified in section 416.10 by leaving the summons and complaint at their office “with the person who is apparently in charge thereof.” “[W]here the proof of service fails to identify any such person, the proof of service is defective. (Ramos v. Homeward Residential, Inc., (2014) 223 Cal. App. 4th 1434, 1441–42.)

On December 29, 2023, Plaintiff filed a Proof of Personal Service (“POS”). The POS states that on that same date, plaintiff served the Summons and Complaint to the “Security Front Desk” at the office building located at 230 Park Avenue South, New York, NY 10003. Defendants provide the declaration of Ely Brown, a security supervisor at the building, to contest this service. He explains that a third party, Unity Building Security, provides security to the building. (Brown Decl., ¶ 4.) Mr. Brown also states that he is not authorized to accept service on behalf of the WBD Defendants, that he is not an officer or agent of the WBD Defendants, that he is not an agent of Defendant Zaslav in any capacity, and that he not an employee of any WBD entity. (¶ 3.) Presumably, neither are the other security personnel. He confirms that two individuals attempted service of process at the publicly accessible vestibule of the office building. (¶ 4.) The two individuals informed the security guards on duty that they were dropping off paperwork for service of process. (¶ 5.) The on-duty guard immediately told the process servers that he was not authorized to accept service on behalf of WBD parties. (¶ 5.) Despite this refusal, the process servers forced the paperwork through a slot in the glass screen, and immediately left the premises. (¶ 5.) Mr. Brown provides a copy of the security footage of this interaction. (¶ 6, Ex. A.)

            The POS is facially defective, as it does not identify any of the people specified above, e.g., officers/managers of the WBD corporate entities. No individual is identified on the proof of service as the “person to be served” on behalf of the WBD Defendants. The proof of service notes that David Zaslav was “personally” served but does not state that he was the “person to be served” and in what capacity he was served as an agent of WBD. (POS ¶¶ 3, 6.)

            Moreover, it is clear from the record and POS that Defendant Zaslav was not personally served, but that only the security personnel were served. The POS does not show that any of the substituted service requirements were met to make such service effective against Zaslav individually. (POS ¶ 5.) The records do not show that Plaintiff “mailed a copy of the summon and complaint by first-class mail, postage prepaid to [Mr. Zaslav] at the place where a copy of the summon and complaint were left.” (CCP § 415.20(a).) Thus, WBD Defendants demonstrate that the service of summons was invalid against them all.

            The summons also does not comply with Code of Civil Procedure section 412.30, which provides that “[i]n an action against a corporation or an unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: ‘To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure).’” (CCP, § 412.30.) The provisions of this section are mandatory and service of a summons that does not comply with this section is ineffective. (Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 435.)

Here, the “NOTICE TO THE PERSON SERVED” section of the form summons is not filled out. (Brown Decl., Ex. B.) The notice therefore does not state whether any person served was being served as an individual, or on behalf of a particular corporate defendant. As such, no default may be taken against either the WBD corporate entities or Defendant Zaslav based on this POS. (CCP § 412.30.)

            Furthermore, Plaintiff fails to oppose the motion, and therefore fails to demonstrate any facts which might support jurisdiction despite any of the discussed inadequacies with the service of summons.

For these reasons, the motion to quash is GRANTED.