Judge: Mark A. Young, Case: 24SMCP00564, Date: 2025-02-04 Tentative Ruling

Case Number: 24SMCP00564    Hearing Date: February 4, 2025    Dept: M

CASE NAME:           Palomo v. Best Buy Co., et al.

CASE NO.:                24SMCP00564

MOTION:                  Motion to Quash Service of Summons

HEARING DATE:    2/4/2025

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.)

“[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.)

Code of Civil Procedure section 412.30 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).’” (Code Civ. Proc., § 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.)

To effectuate service on a corporation, summons may be delivered to the agent for service of process, or to the president, chief executive officer, other head of the corporation, vice president, secretary or assistant secretary, treasurer or assistant treasurer, controller or chief financial officer, general manager, or any other person authorized by the corporation to receive service of process. (CCP § 416.10(a), (b); see CCP, § 416.40 [unincorporated organizations]; CCP, § 415.95 [business organization unknown].)A general manager includes any agent of the corporation “of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.)

Analysis

Respondents Best Buy Stores LP, Damien Pada, Fadi Ammouri, and Ernest Colacion each move to quash service of summons and the complaint.

There are two sets of proof of service on file. On November 6, 2024, Plaintiff filed proofs of personal service as to each Respondent. The November 6, 2024, proof of service filed by Petitioner states that the Summons and Petition were personally delivered to Damien Pada as the managing agent of Best Buy Co. Inc. at 2909 Los Feliz Blvd, Los Angeles, CA 90039 (the address for a Best Buy retail store). Following these motions, on December 17, 2024, Petitioner filed new proofs of personal service as to each Respondent. These proofs state that each Respondent was “personally served” via their counsel Lois Kosch. Petitioner contends that the November 17, 2024, proofs of service moot the instant motions. However, neither sets of the proofs of service are facially valid.

Plaintiff used the form for proof of service in civil actions except for proof of service of summons and complaint. Each proof of service bears the following warning: “PROOF OF SERVICE—CIVIL… Do not use this form to show service of a summons and complaint or for electronic service. See USE OF THIS FORM on page 3.” Indeed, the forms do not provide the necessary information to show statutorily compliant proof of personal service. Paragraph 6 on the forms does not provide the necessary information to show personal service for an individual respondent due to the alternative statements which do not comply with the process statutes. (POS ¶ 6a, cf. CCP §§ 415.10, 416.90.) The statement of mailing on the form also does not comply with the methods of process via mail, which needs to be by first-class mail or airmail, postage prepaid, with two copies of the notice and acknowledgment, and a return envelope, postage prepaid, addressed to the sender. (POS ¶ 6b, cf. CCP § 415.30(a)-(b).) As such, neither method of service was facially valid. Plaintiff thus fails to meet his burden to show valid service of process.

Moreover, the December 17, 2024, service on Respondents were served not served by delivering copies of the summons and complaint to them personally or to someone else authorized by law to accept summons on their behalf. (CCP §§ 415.10, 416.90.) A defendant's agent for other purposes is not enough to establish actual or implied authority to accept service of process by itself, even if it is highly probable that the party will receive actual notice of the lawsuit. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.) For instance, service on a person's attorney is insufficient where there is no evidence of actual or ostensible authority to accept service. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417.) Petitioner does not evidence any actual or ostensible authority for counsel to accept service of process. Thus, Petitioner’s service of process on Respondents’ counsel was facially invalid for this additional reason.

Accordingly, the motions are GRANTED.