Judge: Michael J. Strickroth, Case: 2022-01255653, Date: 2023-07-24 Tentative Ruling
Motion to Quash Summons and Cross-complaint
Cross-Defendant, Jason Hartman’s (Cross-Defendant) Motion to Quash Service of Summons and First Amended Cross-Complaint is GRANTED.
The Court SUSTAINS Cross-Defendants Hartman’s Objections to numbers 1-6 and 10-14 to Evidence in Support of Opposition. Objection 7 is sustained in part as to paragraph 6 to the Hartman Declaration, and objections 8-9 are OVERRULED.
The Court declines to rule on ROI’s Objections to the Declaration of James C. Diefenbach as they are immaterial to the Court’s ruling.
Cross-Complainants ROI Property Group Management, LLC and ROI Property Group 2, LLC (ROI)’s Request for Judicial Notice in Support of Opposition is GRANTED as to Exhibits 1-8 pursuant to Evidence Code sections 452 (d) and (h). The Court otherwise declines to take judicial notice as the remaining documents are immaterial to the Court’s ruling. Kilker v. Stillman (2015) 233 Cal.App.4th 320, 328.
A defendant or cross-defendant may move to quash service of summons on the ground the court lacks personal jurisdiction. Code of Civil Procedure, § 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.” Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439 (Dill). “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.” (Ibid.) “However, strict compliance is not required. In deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant. [Citation.] Thus, substantial compliance is sufficient.” Id., at pp. 1436-1437.
Cross-Defendant contends service of summons on the first amended cross-complaint must be quashed for the following reasons: (1) ROI failed to properly serve Cross-Defendant and (2) personal jurisdiction does not exist over Cross-Defendant.
1. Service of Process on Cross-Defendant
Code of Civil Procedure section 415.40 states: “A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.”
“It is well settled that strict compliance with statutes governing service of process is not required.” Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313. “Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.” (Id.). “Thus, substantial compliance is sufficient.”
Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852 (Carol Gilbert) states “a finding of substantial compliance can only be sustained where (1) the record shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice.” (Id. at 855).
Hartman contends ROI did not properly effectuate service on him pursuant to Code of Civil Procedure section 415.40 because ROI served him at two UPS Stores which were not authorized to accept service. Specifically, Mr. Hartman argues service on the two UPS stores was not effective because he did not use either UPS Store for personal mail.
Hartman declares regarding the validity of the Arizona UPS Store address: “Neither of the addresses on the mail documents, namely 4400 N. Scottsdale Rd., Suite 9-322, Scottsdale, AZ 85251 (the “Arizona Address”) and 401 E. Las Olas Blvd., Suite 130-707, Fort Lauderdale, FL 33301 (the “Florida Address”), are my home address. [¶] In fact, neither the Arizona Address nor the Florida Address is a residence address at all. [¶] The Arizona Address is a UPS store that was used years ago by a company I managed. Although mail forwarding may be operational for that address, no company I am affiliated with has used that address for business purposes in numerous years.[¶] I do not use the Arizona Address to receive personal mail. No one at that address is authorized to accept mail on my personal behalf or receive service of process for me at that address.” (Hartman Declaration (ROA 330), ¶¶ 4, 5, 6, 7.)
Hartman declares regarding the validity of the Florida UPS Store address: “The Florida Address is also a UPS store that is used by a company I manage. [¶] I do not use the Florida Address to receive personal mail. No one at that address is authorized to accept mail on my personal behalf or receive service of process for me at that address.” (Hartman Decl., ¶¶ 8, 9.)
In Opposition, ROI asserts it has substantially complied with Code of Civil Procedure section 415.20 as to service on both the Arizona and Florida UPS Stores. (Opposition, 16:25-28.) Specifically, ROI contends Hartman’s Declaration demonstrates the Arizona UPS Store was authorized to accept service for him because Mr. Hartman attested it was used by a business he managed. (Id.) Further, ROI contends service on the Florida UPS Store was appropriate because Mr. Hartman previously attested he received personal mail at this address.
ROI points to paragraph 7 of its counsel James Heffner’s declaraation for the validity of both the Arizona and Florida UPS Store addresses. However, the Court has sustained Hartman’s objection to this portion of the Heffner Declaration and it is therefore not admissible. ROI also points to paragraph 6 of Hartman’s Declaration for support that he authorized the Arizona UPS Store to receive mail on his behalf. However, on this point the declaration indicates the Arizona UPS store was used “years ago by a company [Hartman] managed” (para. 6) (emphasis added); with Hartman stating the Arizona address is not used for personal mail and no one is authorized to accept mail/service on Hartman’s behalf. (para. 7). ROI does not otherwise submit admissible evidence Hartman used the Arizona UPS Store to receive personal mail.
As to the Florida UPS Store, ROI cites to a Declaration of James Hartman from Platinum Properties Investor Network, Inc., et al. v. Charles Sells (USDC Case no. 0:18-cv-61907) (ROI’s RJN, Exhibit 6), in which Hartman attests: “[m]oreover, while both HMC and Platinum Properties have done significant business in Florida over the years, after my move to Florida, I specifically set up a correspondence address for both of them, and for myself, at 401 E. Las Olas Blvd., Ft. Lauderdale, FL 33301.” (ROI’s RJN, Exhibit 6, ¶ 14.) The Court finds this is admissible evidence that Jason Hartman receives personal mail at the Florida UPS Store.
Additionally, ROI appears to argue Hartman must have authorized each of the UPS Stores to act as his authorized agent for service in order to maintain private mailboxes at these UPS Stores. (Opposition, 17:1-13.) However, ROI’s argument about authorization fails because it did not submit evidence demonstrating Hartman actually made such authorizations, as the forms the Opposition cites to are unsigned, blank forms. (see RJN, Exhibits 11, 12.)
Based on the above, the Court finds ROI has failed to meet its burden to show service of summons on Hartman at the Arizona UPS Store was in substantial compliance with Code of Civil Procedure section 415.40 because ROI does not have evidence Mr. Hartman currently uses the Arizona UPS Store to accept personal mail. ROI’s only evidence Hartman ever used the Arizona UPS Store to receive personal mail is a paragraph from the Heffner Declaration, which is inadmissible.
Although ROI has shown the Florida UPS Store is authorized to accept service, the Court finds ROI’s evidence is insufficient to demonstrate the Florida UPS Store actually received service of Summons and Complaint.
Specifically, the Proof of Service at ROA No. 285 indicates that on 10-25-22, Jason Hartman was served “via First-class mail, postage prepaid, requiring a return receipt pursuant to California Code of Civil Procedure section 415.40” with the following:
· Summons on First Amended Cross-Complaint
· First Amended Cross-Complaint in Interpleader of ROI Property Group Management, LLC and ROI Property Group 2, LLC against Jason Hartman, Platinum Properties Investor Network Inc., Platinum Properties Investor Network, LLC, the Hartman Media Company, and Does 1-20
· Orange County Superior Court Alternative Dispute Resolution (ADR) Information Package
· Minute Order dated 10-10-22
· Minute Order dated 10-11-22.
Two PS Form 3811 are attached to the back of ROA No. 285. One shows an unidentified individual signed for these documents on 10-20-22 at the Arizona UPS Store. The second one shows these documents were mailed to the Florida UPS Store, however, there is no signature on the “COMPLETE THIS SECTION ON DELIVERY” section. To demonstrate that the Florida UPS Store received the Summons and FACC, ROI points to a tracking confirmation for the Florida UPS Store and argues it is “other evidence” of delivery under Code of Civil Procedure section 417.20. The UPS tracking information is authenticated by the Heffner Declaration, which states: “Attached as Exhibit 12 is a true and correct copy of the USPS tracking information for the service of summons on Hartman at his private mailbox at The UPS Store in Fort Lauderdale, mailed on October 25, 2022. I authenticate Exhibit 12 as a document that I supervised the acquisition and creation of and preserved in the ordinary course of business at or near the time of the acts, conditions or events described therein.” (Heffner Decl., ¶ 15.)
Code of Civil Procedure section 417.20 provides that if a person is served by mail pursuant to Code of Civil Procedure section 415.20, a valid proof of service may include “other evidence” of service. The parties have not cited applicable case law for a definition of what is sufficient “other evidence” of service. The Court finds the Heffner Declaration and attached USPS tracking sheet is not sufficient “other evidence” of service under Code of Civil Procedure section 417.20,
Because there does not appear to be guidance stating that a USPS tracking receipt is sufficient “other evidence” of service under Code of Civil Procedure section 417.20, the Court finds ROI has not demonstrated substantial compliance with Code of Civil Procedure sections 417.20 and 415.40 as to the Florida UPS Store. Although ROI has sufficiently demonstrated the Florida UPS Store is authorized to accept service on behalf of Hartman, ROI has not provided sufficient evidence the Florida UPS Store received service of summons because the Heffner Declaration and attached USPS tracking sheet is not sufficient “other evidence” of service under Code of Civil Procedure section 417.20. As indicated in Ramos v. Homestead Residential, Inc., (2014) 223 Cal. App. 4th 1434, 1443, some reliability is required “Evidence that shows the name of the person who received the summons and complaint as well as the person’s title or capacity is required…and without it, a trial court need not infer that a person specified…actually received the summons and complaint.”
Because ROI did not demonstrate substantial compliance with Code of Civil Procedure sections 417.20 and 415.40, Hartman’s Motion is GRANTED. The Court’s ruling is based on a finding that service was not effected and does not address moving party’s argument regarding lack of minimum contact with the state for personal jurisdiction.
ROI is to give notice.