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.