Judge: Melissa R. Mccormick, Case: "Vo v. Vietnamese Community of Southern California, et al.", Date: 2023-08-31 Tentative Ruling

Defendant Thomas Pedersen’s Motion to Quash Service of Summons and Complaint

Defendant Thomas Pedersen moves to quash service of the summons and complaint on him by substituted service on March 15, 2023.  For the following reasons, Pedersen’s motion is granted. 

To achieve substitute service on an individual, a three-step process is required:  (1) the process server must leave a copy of the summons and complaint at the individual’s dwelling house or usual place of abode, usual place of business, or usual mailing address (other than a U.S. Postal Service post office box); (2) the documents must be left with a competent member of the household or person apparently in charge of his or her office, place of business, or usual mailing address, at least 18 years old, who must be told what the papers are; and (3) thereafter, copies of the documents must be mailed to the defendant at the place where the copies were left.  Cal. Civ. Proc. Code § 415.20(b). 

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 facts required for an effective service.  Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.  The burden shifts when a properly executed proof of service has been filed.  Filing a proof of service that complies with the applicable statutory standards creates a rebuttable presumption that service was proper.  Floveyor Int’l, Ltd. v. Superior Ct. (1997) 59 Cal.App.4th 789, 795; see also American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.

Plaintiff filed a proof of service stating plaintiff’s counsel served Pedersen with the summons and complaint on March 15, 2023 by substitute service by delivering the documents to “Audrey Erco, Authorized to Accept Papers” at “438 E Katella Ave, Ste 213, Orange, CA 92867 (instructed to give paper to 438 E Katella Ave, Ste 212, Orange, CA 92867[)],” and thereafter mailing additional copies to Pedersen “at the place where the copies were left.”  ROA No. 78 (3/15/23 Proof of Service of Summons).  Plaintiff also filed a Declaration of Due Diligence stating plaintiff’s counsel attempted to serve Pedersen personally at his office address of “438 E Katella Ave, Ste 213, Orange, CA 92687” three times before leaving the documents at “438 E Katella Ave, Ste 212, Orange, CA 92867.”  Id.; see also Cal. Civ. Proc. Code § 415.20(b); Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.  Plaintiff’s counsel’s Declaration of Due Diligence states counsel “do[es] not have [Pedersen’s] residence address.”  ROA No. 78. 

Pedersen argues plaintiff’s attempted substitute service was not effective because:  (i) plaintiff waited too long to attempt to serve Pedersen; (ii) the documents were left with a nonexistent person who was not, in any event, apparently in charge of Pedersen’s office; (iii) the documents were not left at Pedersen’s office; and (iv) the documents were not mailed to Pedersen at either Suite 213 or Suite 212 after plaintiff’s counsel allegedly left the documents with Erco in Suite 212.

Pedersen has presented evidence that he has not authorized anyone in either his office (Suite 213) or the office around the corner (Suite 212) to accept legal process on his behalf, and that the owner of the business in Suite 212 does not know Erco.  Pedersen Decl. ¶¶ 9-10.  Pedersen has also presented evidence nobody attempted to serve him with legal process at Suite 212 on March 15, 2023, and that he has not received copies of the summons and complaint at either Suite 212 or Suite 213 since March 15, 2023.  Id. ¶¶ 11-14.  Plaintiff did not file objections to any of Pedersen’s evidence.  Pedersen has rebutted any presumption that the alleged March 15, 2023 service was proper. 

Plaintiff has not presented any evidence explaining who Erco allegedly is or why plaintiff contends Erco was a person apparently in charge of Pederson’s office (or any office).  Plaintiff also provides no evidence describing the means by which plaintiff’s counsel allegedly “informed [Erco] of the general nature of the papers.”  See ROA 78 (at ¶ 5(b)(1)).  Plaintiff provides no evidence substantiating the statement in the proof of service that plaintiff’s counsel mailed copies of the documents allegedly left with Erco to Pedersen “at the place where the copies were left” (Suite 212), and no evidence demonstrating plaintiff mailed copies to Pedersen anywhere else, such as at his office (Suite 213).

Plaintiff also provides no authority standing for the proposition that delivering the summons and complaint to the suite around the corner because a note on Pedersen’s office door stated “[d]eliveries can be left w/ Suite 212 around the corner” could constitute proper substitute service, even plaintiff had otherwise complied with section 415.20(b). 

Pedersen’s motion to quash the service of the summons and complaint is granted.   

Clerk to give notice.

Order to Show Cause re Dismissal

The Order to Show Cause re Dismissal is discharged. 

The trial is scheduled for September 30, 2024 at 9:00 a.m. in Department C13.

Clerk to give notice.