Judge: Michael E. Whitaker, Case: 21SMCV01081, Date: 2023-11-28 Tentative Ruling

Case Number: 21SMCV01081    Hearing Date: November 28, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

On June 18, 2021, Plaintiff Cara Sims (“Plaintiff”) filed a complaint in pro per for discrimination, retaliation, and harassment against Defendants Santa Monica College and Human Resources Santa Monica College; Esperanza Bolivar-Owen; Kathryn E. Jeffery; Toni Trives; Esou Tovar; Nicholas Chambers; Eric Oifer; and Alan Kuykendall.  On September 30, 2022, Plaintiff filed the First Amended Complaint (“FAC”). 

Plaintiff has not filed proofs of service regarding either the complaint or the first amended complaint.

On February 15, 2023, Defendants Santa Monica College and Human Resources Santa Monica College and Kathryn E. Jefferey demurred to the FAC which was sustained without leave to amend on March 30, 2023. 

The remaining Defendants Toni Trives, Esou Tovar, Esperanza Bolivar-Owen, Eric Oifer, Alan Kuykendall, and Nicholas Chambers (collectively, “Defendants”) have now moved to quash service of the first amended summons and complaint.  Defendants’ motions are unopposed.

LEGAL STANDARDS

“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:  (1) 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).) 

“In the absence of a voluntary submission [1] to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“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’ ”].)   A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

            “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.  (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) 

For service on persons within California, generally, service of summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” a plaintiff may serve an individual defendant “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 . . . , 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 . . . , 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.”  (Code Civ. Proc., § 415.20, subd. (b).) 

Further, service on persons within California may be perfected by mail under Code of Civil Procedure section 415.30.  In particular, Section 415.30 provides:  “A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.”  (Code Civ. Proc., § 415.30, subd. (a).) 

ANALYSIS

Defendants have moved to quash service of the summons on the basis that Plaintiff did not properly effectuate service on them by causing a package containing six copies of the first amended summons and complaint to be mailed to Santa Monica College.  The Court agrees.

Foremost, because Plaintiff has not filed proofs of service regarding service of either the complaint or amended complaint and has not opposed the motions, the Court finds that Plaintiff has failed to meet her burden of proof to establish proper service of the FAC on Defendants by any means, including personal service, substitute service or service by mail. 

Notwithstanding, Defendants advance the Declaration of Louis R. Dumont (“Dumont”), counsel for Defendants (including Santa Monica College and Kathryn E. Jeffery) who states in part the following:

6. I am informed and believe that on or about September 25, 2023, Plaintiff, who is a pro per, caused to be sent a large envelope containing 250 pages of portions of the Summons and Complaint and First Amended Summons and Complaint to Santa Monica College.

7. I am informed and believe that the package was transmitted to Eric Oifer in the SMC intercampus mail. The package was transmitted to SMC Campus Counsel, who transmitted the documents to your declarant for review. In reviewing the documents on October 3, 2023, I can confirm the package contained portions of six (6) Summons and Complaints and the First Amended Summons and Complaint, although not labeled presumably intended for the six remaining individual defendants in this matter. Three of these defendants, Esperanza Bolivar-Owen, Toni Trives, Alan Kukendall, are either retired or not presently working at Santa Monia College.

8. In addition, the package contained letters from Michael Morrison, indicating that he served (sic) these court documents to Santa Monica College, Human Resources to each of the six individual defendants on behalf of Cara Sims. Mr. Morrison also claimed that the document was mailed to Louis R. Dumont, Esq., Carpenter, Rothans & Dumont LLP 500 South Grand Avenue, 19th Floor Los Angeles, California 90071 T:213.228.0400 • F: 213.228.040/www.crdlaw.com and Santa Monica College 1900 Pico Blvd 90405. I can attest that I have never received any such document from Mr. Morrison.

9. The letter from Mr. Morrison also contained his contact information at 37 Crane St, Newark NJ 07104; phone number is (347)310-6887 and Cara Sims at 29 Ann St. #305 Morristown, NJ 07960; (973) 816-0475.

10. I then attempted to contact Mr. Morrison on October 3, 2023 regarding the documents and service at his listed phone number. The phone was answered by Cara Sims. I confirmed it was Ms. Sims on the line. I advised Ms. Sims that I had a package that was purportedly sent by Mr. Morrison. Ms. Sims confirmed that Mr. Morrison had sent her documents in one envelope addressed to SMC via overnight mail from New Jersey. I advised Ms. Sims that I had not received any such package.

11. When asked why she mailed documents to SMC, Ms. Sims informed me that she was attempting to serve the individuals who had not been dismissed. Ms. Sims confirmed that the documents had not been personally served to each of the defendants and were simply mailed to the College. I informed Ms. Sims that her service was defective and that several of the defendants were not presently working at the College. Ms. Sims kept repeating that she had “complied with court service.”

12. I again advised Ms. Sims that her service was improper and asked her to send me copies of the overnight delivery receipts for SMC and my office. These documents have not been provided to date. I also request Ms. Sims send me an email stating that she was either withdrawing the service or provide me with Proofs of Service for each of the individual defendants. Otherwise, I would need to proceed with the filing of motions to quash service. To date, no Proofs of Service have been provided.

(Declaration of Louis R. Dumont, ¶¶ 6-12, emphasis added.) 

            As set forth in Dumont’s declaration, Plaintiff admitted that the summonses and complaints (initial and amended) were not personally served on Defendants, and in confirming that the summonses and complaints (initial and amended) were mailed to Defendants via Santa Monica College, she tacitly conceded that she did not comply with the provisions for proper substitute service or service by mail. 

CONCLUSION AND ORDER

            Having found no evidence in the record that the Defendants were properly served with the summonses and complaints (initial and amended), the Court finds that Plaintiff has failed “to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service,” and consequently, the Court grants Defendants’ Motions to Quash Service of Plaintiff’s Complaint. 

            The Clerk of the Court shall provide notice of the Court’s ruling.     

DATED:  November 28, 2023                        ___________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court