Judge: Mark E. Windham, Case: 24STLC00028, Date: 2024-03-18 Tentative Ruling

Case Number: 24STLC00028    Hearing Date: March 18, 2024    Dept: 26

Koury v. On the House Homes and Loans, Inc., et al.

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendants On the House Homes and Loans, Inc. and Mark Gershick’s Motion to Quash Service of the Summons and Complaint is GRANTED AS TO ON THE HOUSE HOMES AND LOANS, INC. AND DENIED AS TO MARK GERSHICK. DEFENDANT MARK GERSHICK IS TO FILE A RESPONSIVE PLEADING TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On January 3, 2024, Plaintiff Ken Koury (“Plaintiff”), in propria persona, filed the Complaint in this action against Defendants On the House Homes and Loans, Inc. (“Defendant OTHHL”) and Mark Gershick (“Defendant Gershick”). No proof of service has been filed. The Motion to Quash was filed by Defendants on February 26, 2024. No opposition has been filed to date.

Discussion

Defendants move to quash service of the Summons and Complaint on the grounds that Plaintiff did not serve them in the statutorily required manner. The Motion is brought pursuant to Code of Civil Procedure section 418.10, which states: “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 serve and file a notice of motion for one or more of the following purposes: 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)(1), emphasis added.) The Motion is timely because no proof of service of the Summons and Complaint has been filed with the Court, so the time for Defendants to file a responsive pleading has not yet passed.

Where service is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service. “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; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

As no proof of service has been filed, Defendants provide declarations setting forth the manner of service effectuated by Plaintiff. Specifically, they show that on January 26, 2024, an unknown individual handed papers to Diana Delgado Gershick (“Diana Gershick”) at 10064 Claire Avenue, Northridge, California. (Motion, Diana Gershick Decl., ¶4.) There were no prior attempts at service from the time of the filing of the Complaint. (Id. at ¶7.)

Service on a corporation must conform to Code of Civil Procedure section 416.10 by delivery to the person designated as agent for service of process, or “[t]o 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.” (Code Civ. Proc., § 416.10, subds. (a) and (b).) Diana Gershick is not an agent for service of process for Defendant OTHHL, nor an officer, corporation head, or manager, or otherwise authorized to accept service of process. (Motion, Diana Gershick Decl., ¶¶1-3.) Therefore, delivery of the papers to Diana Gershick does not amount to statutory service on Defendant OTHHL.

Substitute service on an individual must conform to Code of Civil Procedure section 415.20:

(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, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office . . . .

(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 . . . .

(Code Civ. Proc., § 415.20, subds. (a) and (b).) Although the Motion focuses on subdivision (b), which requires reasonable diligence to effectuate personal service, subdivision (a) allows service to the individual’s office without any attempts at personal service. The Motion does not demonstrate that the service address, 10064 Claire Avenue, Northridge, California, is not Defendant Gershick’s office. Therefore, the Court cannot find that service on Defendant Gershick did not comply with the statutory requirements.

Conclusion

Specially Appearing Defendants On the House Homes and Loans, Inc. and Mark Gershick’s Motion to Quash Service of the Summons and Complaint is GRANTED AS TO ON THE HOUSE HOMES AND LOANS, INC. AND DENIED AS TO MARK GERSHICK. DEFENDANT MARK GERSHICK IS TO FILE A RESPONSIVE PLEADING TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Court clerk to give notice.