Judge: Mel Red Recana, Case: 24STCV09510, Date: 2024-10-30 Tentative Ruling
Case Number: 24STCV09510 Hearing Date: October 30, 2024 Dept: 45
Hearing date: October 30, 2024
Moving Party: Defendant
Movagar & Yamin
Responding
Party: Plaintiff Mgdesyan Law Firm
Motion to Quash Service of Summons
The Court has
considered the moving papers.
The Court GRANTS Defendant’s motion to quash service
of process.
Background
This
case arises out of a dispute between the allocation of attorney’s fees between
Plaintiff Mgdesyan Law Firm (Plaintiff) and Defendant Movagar & Yamin
(Defendant). Plaintiff had represented a client prior to being terminated, with
the client then enlisting the legal services of Defendant. (Compl., ¶¶ 7-8.)
The client then terminated Defendant’s services after only one (1) month and
eleven (11) days, and reinstituted Plaintiff’s services. (Id. at ¶ 8.)
Plaintiff was able to acquire a settlement for the client in the amount of
$900,000.00. (Id. at ¶ 10.) Both Plaintiff and Defendant are entitled to
one of the checks that the insurer issued, which provided for 40% of the
$900,000.00 or $360,000.00. (Id. at ¶ 11.) The dispute arises from the
division of the attorney’s fees of the issued check of $360,000.00.
On
April 16, 2024, Plaintiff filed a complaint against Defendant, alleging causes
of action for (1) declaratory relief, and (2) tortious interference of contract
and prospective economic damage.
On
May 25, 2024, Defendant specially appeared and filed the instant motion to
quash the service of summons, as well as a request for sanctions.
No
opposition was filed.
Legal
Standard
“‘Service of process, under longstanding
tradition in our system of justice, is fundamental to any procedural imposition
on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev
(2018) 21¿Cal.App.5th 189, 202.) “To establish personal jurisdiction,
compliance with statutory procedures for service of process is
essential.” (Kremerman v. White (2021). 71 Cal.App.5th 358,
371.) Defendant’s knowledge of the action does not dispense with
statutory requirements for service of summons. (Kappel v. Bartlett
(1988) 200 Cal.App.3d 1457, 1466.)
“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 move “to quash service of summons on the ground of
lack of jurisdiction of the court over him or her” that results from lack of
proper service. (Code of Civ. Proc., § 418.10, subd. (a)(1)). A
defendant has 30 days after the service of the summons to file a responsive
pleading. (Code Civ. Proc., § 412.20, subd. (a)(3).)
Once a challenge to the court’s
personal jurisdiction is filed, “the burden of proof is placed upon the
plaintiff to establish the facts of jurisdiction by a preponderance of the
evidence. This may be done through presentation of declarations, with opposing
declarations received in response.” (CenterPoint Energy, Inc. v. Superior
Court (2007) 157 Cal.App.4th 1101, 1118 (citing Aquila, Inc. v. Superior
Court (2007) 148 Cal.App.4th 556, 568).) “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.)
Discussion
Here, Defendant moves to quash
service of summons and complaint, on the basis of lack of personal jurisdiction
due to ineffective service California Code of Civil Procedure §§ 415.10, 415.20
& 416.10.
Under California
law, service of process of a summons and complaint may be made “by delivering a
copy of the summons and complaint to the individual defendant personally.” (Code Civ. Proc., §
415.10; Board of Trustees of Leland Stanford Junior University v. Ham
(2013) 216 Cal.App.4th 330, 336 (citing Evartt v. Superior Court (1979)
89 Cal.App.3d 795, 799) [“The preferred way to serve a defendant, of course, is
by personal delivery as prescribed in section 415.10, as this is the most
likely to ensure actual notice to the defendant.”].)
For corporations, personal service can be
issued upon the “agent for service of process” or the “president, chief
executive officer, or other head of a 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(a), (b); Gibble v. Car-Lene Research, Inc. (1998) 67
Cal.App.4th 295, 303 [“Section 416.10 governs service of process upon
corporations generally.”].) “Service is effected by delivery a copy of the
summons and a copy of the complaint to one of these persons by a method of
service specified in California Code of Civil Procedure § 413.10.” (Code Civ.
Proc., § 416.10 (Comment – Judicial Council).)
However, “[i]f 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.”
(Code Civ. Proc. § 415.20, subd. (b).) Reasonable diligence has been
described as “denot[ing] a thorough, systematic investigation and inquiry
conducted in good faith by the party or his agent or attorney.” (Kott v.
Superior Ct. (1996) 45 Cal.App.4th 1126, 1137.)
“The
return of a [registered] process server … establishes a presumption, affecting
the burden of producing evidence, of the facts stated in the return.” (Evid.
Code § 647.) “The filing of a proof of service creates a rebuttable presumption
that the service was proper.” (Floveyor International, Ltd. v. Superior
Court (1997) 59 Cal.App.4th 789, 795.) However, “once a defendant files a
motion to quash the burden is on the plaintiff to prove by a preponderance of
the evidence the validity of the service and the court’s jurisdiction over the
defendant.” (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984,
991.)
Here,
Defendant purports that it was not served with the summons and complaint
properly. On April 29, 2024, Plaintiff served Defendant through substituted
service by leaving the required documents with “’John Doe’ – Guard/Refused full
name, Age: 25 Weight: 170 Hair: black Sex: Male Height: 5'7 Eyes: brown Race:
Hispanic” at t 6300 Wilshire Blvd., Suite 807, Los Angeles, CA 90048-5229.”
However, there is no indication that Plaintiff made a good faith effort or
proceeded with reasonable diligence to personally serve an “agent for service
of process” or other individual delineated in Code of Civil Procedure § 416.10.
(See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383,
389 [“[A]n individual may be served by substitute service only after a good
faith effort at personal service has first been made: the burden is on the
plaintiff to show that the summons and complaint ‘cannot with reasonable
diligence be personally delivered’” to the defendant.”].) Additionally,
Plaintiff did not attach a declaration of diligence stating the actions that
were taken to first attempt personal service. Lastly, Plaintiff has not filed
an opposition potentially explaining any efforts that were made in effectuating
adequately proper service. Therefore, the Plaintiff has not met its burden in
establishing the validity of the substituted service and the Court’s exercise
of jurisdiction over Defendant.
Defendant
also requests sanctions under Code of Civil Procedure §§ 177.5 and 128.5.
Section 177.5 allows a judicial officer to “impose reasonable money sanctions,
not to exceed fifteen hundred dollars ($1,500) . . . for any violation of
a lawful court order by a person, done without good cause or substantial
justification.” However, Plaintiff did not violate a court order. Section 128.5
allows a trial court to “order a party, the party’s attorney, or both, to pay
the reasonable expenses, including attorney’s fees, incurred by another party
as a result of actions or tactics, made in bad faith, that are frivolous or
solely intended to cause unnecessary delay.” There is no evidence that
establishes that Plaintiff acted in bad faith, to pursue frivolousness or with
the intention to cause unnecessary delay. Thus, the Court declines to award
sanctions to Defendant.
The
Court therefore GRANTS Defendant’s motion to quash service of process.
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It is so
ordered.
Dated:
October 30, 2024
_____________________
MEL RED RECANA
Judge of the
Superior Court