Judge: Michael E. Whitaker, Case: 24SMCV05231, Date: 2025-03-18 Tentative Ruling

Case Number: 24SMCV05231    Hearing Date: March 18, 2025    Dept: 207

TENTATIVE RULING

MOTION

            Defendant Contempo Floor Coverings, Inc. (“Defendant”) appears specially and moves to quash service of the summons and complaint.  Plaintiff Cobby Pourtavosi opposes the motion, and Defendant replies.

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. (2) To stay or dismiss the action on the ground of inconvenient forum.”  (Code Civ. Proc., § 418.10, subd. (a)(1)-(2).) 

“In the absence of a voluntary submission 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.4^th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4^th 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.4^th 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.4^th 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.)  

First, “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (Code Civ. Proc. § 415.10.)  Alternatively, 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).)

DISCUSSION

            Plaintiff filed the complaint in this matter on October 24, 2024.  The proof of service, which Plaintiff filed on January 30, 2025, indicates that on January 9, 2025, Plaintiff served the summons and complaint on Defendant by substitute service by leaving the documents at Defendant’s business with “Brandon Bear – Person in Charge.”

            Defendant moves to quash service of the summons on the grounds that there is no “Brandon Bear” who works for Contempo, either currently or in the past.  Although “Brandon Bayer” is a new salesman at Contempo, he is not Contempo’s Agent for Service of Process, nor is he authorized to accept service on behalf of Contempo.  (Haloossim Decl. ¶¶ 2-3.)   Mr. Bayer is also not actually “in charge” of the premises. (Haloossim Decl. ¶ 2.)

            Defendant does not dispute that the address in question is its place of business.  Nor does Defendant dispute that the documents were left with Contempo employee Brandon Bayer.  Thus, the process server left a copy of the summons and complaint with someone over the age of 18 “apparently” in charge at Defendant’s registered address and subsequently mailed a copy to Defendant’s registered agent at the same address.  That is all the Code requires.

The Code does not require that the person with whom the documents are left actually be in charge of Defendant’s operations.  After diligent but unsuccessful attempts to personally serve a defendant, which Plaintiff has demonstrated here, the combination of leaving the summons and complaint with someone who appears to be in charge, informing that person of the contents, and subsequently mailing a copy to the registered address is designed to give the recipient actual notice of the lawsuit and suffices to effectuate substitute service.

CONCLUSION AND ORDER

            Therefore, the Court finds Defendant has not rebutted the presumption of proper service of the summons and complaint in the proof of service and denies Defendant’s Motion to Quash in its entirety.

Defendant shall file and serve a response to the Complaint on or before April 18, 2025. 

Further, on the Court’s own motion, the Court continues the Case Management Conference from March 18, 2025 to June 18, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725).    

            Plaintiff shall provide notice of the Court’s orders and file the notice with a proof service forthwith.

DATED:  March 18, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court