Judge: Michael E. Whitaker, Case: 25SMCV00390, Date: 2025-05-22 Tentative Ruling

Case Number: 25SMCV00390    Hearing Date: May 22, 2025    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a dispute concerning the distribution of settlement proceeds from a case involving an airplane crash. 

On January 24, 2025, Plaintiff Herzog, Yuhas, Fornier & Ardell, LLP (“Plaintiff”) filed suit against Defendants Edward Susolik (“Susolik”); Callahan & Blaine, APLC; Michael Halow (“Halow”); Amazing Concepts, LLC; Endurance Assurance Corporation; and Gryphon Aircraft Services, LLC alleging six causes of action for (1) interference with economic relationship; (2) conversion; (3) breach of contract; (4) quantum meruit; (5) unjust enrichment; and (6) declaratory relief.

Susolik and Halow each separately move to quash service of the summons and complaint on them.  Plaintiff filed notices of Non-Oppositions to both motions. 

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 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).) 

A court may also exercise jurisdiction over an individual who consents to such jurisdiction.  (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658.)  “Express consent to a court's jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence.”  (Ibid. [cleaned up].) 

ANALYSIS

The proofs of service for Halow and Susolik (“Defendants”) indicates each was served by substitute service on March 24, 2025 by leaving the documents in the presence of “Genesis Romero, Receptionist” at 3 Hutton Centre Drive Ninth Fl, Santa Ana, CA 92707.

Halow and Susolik move to quash service of the summons and complaint in this manner on the grounds that (1) Genesis Romero is not authorized to accept service on their behalf and (2) the proof of service does not include a declaration of diligence.

Taking Defendants’ second argument first, the Court agrees.  Although the checkbox is marked on the proof of service indicating that a declaration of diligence is attached, no such declaration of diligence was attached to either proof of service.  The Code provides, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” then the defendant may be served via substitute service, including by leaving a copy of the summons and complaint with someone apparently in charge at their usual place of business and thereafter mailing a copy.  (Code Civ. Proc. § 415.10.) 

Here, Plaintiff has not demonstrated the requisite diligent attempt to personally serve defendants first, nor has Plaintiff opposed Defendants’ motions to quash.

CONCLUSION AND ORDER

            Therefore, the Court grants Halow and Susolik’s unopposed motions to quash service of the summons and complaint.  The Court quashes service of the summons and complaint as to both Halow and Susolik.

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

DATED:  May 22, 2025                                 ___________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court