Judge: Melvin D. Sandvig, Case: 22CHCV00073, Date: 2022-09-07 Tentative Ruling
Case Number: 22CHCV00073 Hearing Date: September 7, 2022 Dept: F47
Dept.
F-47
Date:
09/07/22
TRIAL DATE: Not Set.
Case
# 22CHCV00073
MOTION TO QUASH SERVICE OF SUMMONS
Motion filed on May
27, 2022.
MOVING
PARTY: Specially Appearing Defendants Lori Banks and
A Thread Ahead, Inc.
RESPONDING
PARTY: Plaintiff 5th Street B.P., LLC
NOTICE:
ok
RELIEF
REQUESTED:
An Order Quashing Service of Summons and Complaint
RULING: The Motion to Quash Service of Summons and Complaint is
denied as moot.
On
January 31, 2022 Plaintiff 5th Street B.P., LLC (“Plaintiff”) filed a Complaint
asserting a cause of action for breach of contract against Specially Appearing
Defendants Lori Banks (“Banks”) and A Thread Ahead, Inc. (“ATA”) (collectively
“SADs”)
SADs
move the Court for an order quashing service of the Summons and Complaint on
the grounds that Plaintiff failed to properly serve them. SADs represent that the service of Summons
and Complaint are defective because they were served by substituted service on
“Jane Doe,” who were not employees, agents, or representative of the SADs, and
were not authorized to accept service on their behalf.
Banks
Code
of Civil Procedure section 415.20(a) states “[i]n lieu of personal delivery of
a copy of the summons and complaint to the person to be served[,] . . . a
summons may be served by leaving a copy of the summons and complaint during
usual office hours in his or her office or, if no physical address is known, at
his or her usual mailing address, other than a United States Postal Service
post office box, with a person who is apparently in charge thereof, and by
thereafter mailing a copy of the summons and complaint by first-class mail,
postage prepaid to the person to be served at the place where the copy of the summons
and complaint were left.”
Filing
a proof of service by a registered process server creates a rebuttable
presumption that service was proper. American Express Centurion Bank
v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a
process server registered pursuant to . . . the Business and Professions Code
upon process or notice establishes a presumption, affecting the burden of
producing evidence, of the facts stated in the return.”] However, the
presumption only arises if the proof of service complies with the statutory
requirements regarding such proofs. Dill v. Berquist Construction Co. (1994)
24 Cal.App.4th 1426, 1441–1442
In
Opposition, Plaintiff provides evidence that on June 20, 2022, it re-served the
Summons and Complaint on Banks with a registered process server by substituted
service at Bank’s business by leaving the Summons and Complaint with Jarad
Banks who was in charge of the office.
Meyers Decl., Exh. E. Plaintiff
then mailed the Summons and Complaint in accordance with Code of Civil
Procedure section 415.20(a). Id. Then on June 24, 2022, Plaintiff again served
the Summons and Complaint on Banks with a registered process server by
substituted service at Bank’s business by leaving the Summons and Complaint
with Chad Leininger who was in charge of the office. Meyers Decl., Exh. E. Plaintiff then mailed the Summons and
Complaint in accordance with Code of Civil Procedure section 415.20(a). Id.
In
Reply, SADs fail to address the re-service of the Summons and Complaint on
Banks, and that service of the Summons and Complaint with Jarad or Chad was not
proper. Accordingly, the re-service of
the Summons and Complaint appears to be proper because it complies with Code of
Civil Procedure 415.20(a), and SADs fails to state (or address) in their Reply
that the re-service was deficient and/or improper.
Thus,
SADs Motion to Quash as to Banks is denied as moot.
ATA
A
summons may be served on a corporation by delivering a copy of the summons and
complaint: (1) to the person designated as agent for service of process (Code
of Civ. Proc., § 416.10(a)); (2) 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 (Code of Civ. Proc., § 416.10(b)); or (3) a method
authorized by California Corporations Code sections 1701, 1702, 2110, or 2111
(Code of Civ. Proc., § 416.10(c)). The California Corporations Code
authorizes service on any natural person designated as a corporation’s agent,
service on the California Secretary of State with a court order authorizing
such service, service on a foreign corporation’s officers and general managers
in California. Cal. Corp. Code, §§ 1701, 1702, 2110, 2111.
In
Opposition, Plaintiff provides evidence that on June 20, 2022, it re-served the
Summons and Complaint on ATA with a registered process server by personal
service by leaving the Summons and Complaint with Jarad Banks, who is an
authorized agent to receive service of process for ATA. Meyers Decl., Exh. E.
In
Reply, SADs fail to address the re-service of the Summons and Complaint on ATA,
and that service of the Summons and Complaint with Jarad (an authorized agent
for service) was not proper.
Accordingly, the re-service of the Summons and Complaint appears to be
proper because it complies with Code of Civil Procedure 416.10(b), and SADs
fails to state (or address) in their Reply that the re-service was deficient
and/or improper.
Thus,
SADs Motion to Quash as to Banks is denied as moot.