Judge: Michael P. Linfield, Case: 21STCV36297, Date: 2022-07-26 Tentative Ruling
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Case Number: 21STCV36297 Hearing Date: July 26, 2022 Dept: 34
of Summons
Moving Party: Defendant
Sanford Gendel (“Gendel”)
Resp. Party: None
Defendant Sanford Gendel’s Motion to Quash Service of Summons is
GRANTED.
I.
BACKGROUND
On October 1, 2021, Plaintiff 1344 N. Highland Ave, LLC filed a
complaint against Defendant Sanford Gendel alleging the following causes of
action:
1. Breach of Contract
2.
Common
Counts
On December 17, 2021, Gendel filed a Motion to Quash Service of
Summons. The motion is unopposed.
On March 17, 2022, Gendel’s Motion to Quash Service of Summons was
taken off calendar, as the Court found that the present case “may be related to
1344 N Highland LLC v. Sanford Gendel, Case No. 20STCV45971.” (Minute Order,
March 17, 2022, p. 1.) Plaintiff 1344 N. Highland Ave, LLC was “ordered to file
a Notice of Related Case with respect to this action and 1344 N Highland LLC
v. Sanford Gendel, Case No. 20STCV45971, pursuant to the requirements and
procedures set forth in California Rule of Court 3.300.” (Id.)
On March 17, 2022, Plaintiff 1344 N. Highland Ave, LLC filed a Notice
of Related Case with the Court.
On March 21, 2022, the Court found that “the following cases,
20STCV45971 and 21STCV36297, are related within the meaning of California Rules
of Court, rule 3.300(a). 20STCV45971 is the lead case.” (Minute Order, March
21, 2022, p. 1.) All hearings in cases other than the lead case were placed off
calendar. (Id.)
On May 27, 2022, Gendel moved the Court “for an order, pursuant to
California Rule of Court 3.1304, restoring Sanford Gendel’s motion for an order
quashing alleged service of the Summons and Complaint in this action to the
Court’s calendar.” (Motion, p. 2:7-9.) The motion is unopposed.
On June 24, 2022, the Court granted Defendant Sanford Gendel’s Motion
for Order Restoring Motion to Quash Service of Summons.
II.
ANALYSIS
A.
Legal Standard
“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.” (CCP § 418.10(a).) “The motion to
quash must be made . . . on or before the last day to plead ‘or within any
further time that the court for good cause may allow.’” (Edmon & Karnow, Cal.
Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 4:420; Code
Civ. Proc. § 418.10(a); see Marriage of Obrecht (2016) 245 Cal.App.4th
1, 16-17 [where motion to quash was filed after defendant’s time to plead
expired, but plaintiff made no objection and court addressed motion on its
merits, motion to quash was deemed timely brought within time allowed by the
court].)
Complainants have the initial burden to
evidence valid statutory service of a summons and complaint. (Dill v.
Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor
Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794; Edmon & Karnow, supra,
at ¶ 4:428.) “‘[C]ompliance with the statutory procedures for service of
process is essential to establish personal jurisdiction.’ ” (Ellard v.
Conway (2001) 94 Cal.App.4th 540, 544.) A filed proof of service creates a
rebuttable presumption that service was proper if it complies with applicable
statutory requirements. (Floveyor Internat. v. Sup. Ct. (1997) 59
Cal.App.4th 789, 795.)
When a defendant moves to quash service of
the summons and complaint, the plaintiff has “the burden of proving the facts
that did give the court jurisdiction, that is the facts requisite to an
effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)
“A court lacks jurisdiction over a party if there has not been proper service
of process.” (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801,
808.)
In general, there are four methods for
service of process within California, including personal service, substitute
service, service by mail with acknowledgement of receipt, and service by
publication. (See CCP § 415.10 et seq.) Service by mail is only deemed
complete on the date the defendant signs and returns the Acknowledgment. (CCP §
415.30, subd. (c).)
B.
Discussion
Process server Daryl Crimson “was tasked by Motaz Gerges, Esq. to serve
the summons and complaint and ancillary court documents on Sanford Gendel” in
the present case on October 20, 2021. (Crimson Decl., ¶ 5.) Crimson attempted
to serve Gendel on Octonber 25, 2021, October 31, 2021, and November 2, 2021,
to no avail. (Crimson Decl., ¶¶ 6, 7.) Crimson attempted to serve Gendel on
November 6, 2021 and substitute served a woman Crimson described as “light
skinned African American woman, approximate age 70, height 5’6”, weight 120,
hair black with a little gray” whom Crimson believed was Gendel’s mother.
(Crimson Decl., ¶ 8.)
Diane Gendel, mother to Defendant Sanford Gendel, attests that she is
not Black, “was not physically present at 8037 Rothdell Trail, Los Angeles, CA
90046 on November 6, 2021,” and does not reside at that address. (Gendel Decl.,
¶¶ 2-5.) Diane Gendel attests further that she has “never seen the Summons or
Complaint in this action.” (Gendel Decl, ¶ 6.)
There has been no opposition to this motion, and Plaintiff has not
presented any facts to indicate that service was validly effected.
The Court finds that the substitute service of Sanford Gendel is not
valid.
III. CONCLUSION
Defendant Sanford Gendel’s Motion to Quash Service of Summons is
GRANTED.
The Court schedules a Case Management
Conference for October 6, 2022. If the
complaint has not been served by that date, the Court will dismiss the
complaint.