Judge: Michael P. Linfield, Case: 21STCV36297, Date: 2022-08-04 Tentative Ruling

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Case Number: 21STCV36297    Hearing Date: August 4, 2022    Dept: 34

SUBJECT:                 Sanford Gendel’s Motion to Quash Service of Summons

Moving Party:          Defendant Sanford Gendel (“Gendel”)

Resp. Party:             Plaintiff 1344 N. Highland Ave., LLC

 

 

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 specially appeared “pursuant to Code of Civil Procedure section 418.10 to move the Court for an order quashing alleged service of the Summons and Complaint in this action on the ground that Sanford Gendel was not served in a manner alleged.” (Motion, filed December 17, 2021, p. 2:6-8.)

 

On February 9, 2022, Plaintiff 1344 N. Highland Ave., LLC opposed Gendel’s motion to quash service of summons.

 

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, filed May 27, 2022, p. 2:7-9.) The motion is unopposed.

 

On June 24, 2022, the Court granted Gendel’s motion to restore Gendel’s 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).)

 

“A summons may be served on a public entity by delivering a copy of the summons  and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.” (CCP § 416.50, subd. (a).) A “‘public entity’ includes the state and any office, department, division, bureau, board, commission, or agency of the state, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in this state.” (CCP § 416.50, subd. (b).)

 

B.          Discussion

 

On November 18, 2021, Plaintiff 1344 N. Highland Ave, LLC filed a Proof of Service with the Court to attest that Defendant Sanford Gendel was served the Summons and Complaint case on November 6, 2021 by substitute service.  He was served by a process server identified only as “Daryl” at the behest of Motaz M. Gerges, counsel for Plaintiff. (Proof of Service, filed November 18, 2021; Gerges Decl., ¶ 1.) Daryl’s report stated the following: “SUB SERVED DIANN GENDEL, MOTHER”. (Id.) Daryl Crismon, a California Process Server registered in Los Angeles County under Registration No. 2013084008, later attested that he attempted to serve Defendant Sanford Gendel on October 25, 2021 and October 31, 2021, “and there was no response.” (Crismon Decl., ¶¶ 3, 6.) Crismon again attempted to serve Defendant Sanford Gendel on November 2, 2021, “and he was not at home or wouldn’t answer the door even though I saw a motorcycle in front of the residence.”

 

On November 6, 2021, Crismon attests that he attempted to serve Defendant Sanford Gendel and encountered “a light skinned African American woman, approximate age 70, height 5'6", weight 120, hair, black with a little gray, answered the door and said that Mr. Gendel was not at home. I asked who she was, and she told me she was Mr. Gendel's mother, Diann Gendel. I asked her if she would accept service for Mr. Gendel and she said "yes", so I substitute served Ms. Gendel on behalf of Sanford Gendel with the court documents and mailed a copy the same day.” (Crismon Decl., ¶ 8.) The Proof of Service Plaintiff 1344 N. Highland Ave, LLC filed on November 18, 2021 lists these details in an abbreviated form.

 

Gendel argues that this substituted service is invalid because his mother, Diane Gendel, was not physically present at 8037 Rothdell Trail, Los Angeles, CA, on November 6, 2021. (Diane Gendel Decl., ¶ 4.) Further, Ms. Gendel attests that she is not Black, and has never seen the Summons or Complaint in the present action. (Diane Gendel Decl., ¶¶ 3, 6.)

 

In opposition to this motion to quash service of summons, Plaintiff’s counsel argues that on October 4, 2021, he emailed copies of the filed Complaint to Mr. Alex Tobolsky of Novian and Associates, “the attorneys who filed this motion to quash.” (Gerges Decl., ¶ 5, Ex. A.) Plaintiff’s counsel notes that Mr. Tobolsky responded on October 5, 2021, stating “We currently do not represent Mr. Gendel in this action. If anything changes, we’ll let you know.” (Gerges Decl., ¶ 6, Ex. B.) Plaintiff’s counsel infers that Novian and Associates forwarded copies of the Complaint to Mr. Gendel and “inquired if he would hire them at that time giving Mr. Gendel notice of the filed complaint.” (Gerges Decl., ¶ 7.)

 

The Court may not make such an inference. Nothing in the Declarations of Motaz M. Gerges or Daryl Crismon offers facts to allow the Court to conclude that personal service, substituted service, service by mail, or service by publication occurred in this case. Because Plaintiff has not shown facts that establish effective service, Plaintiff has not met its burden under Coulston.

 

III.     CONCLUSION

 

Defendant Sanford Gendel’s Motion to Quash Service of Summons is GRANTED.