Judge: Michael P. Linfield, Case: 22STCV15352, Date: 2022-10-05 Tentative Ruling

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Case Number: 22STCV15352    Hearing Date: October 5, 2022    Dept: 34

SUBJECT:                 Motion to Quash Service of Process

Moving Party:          Specially Appearing Defendant Moet Fawaz

Resp. Party:             Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust

SUBJECT:                 Motion for Order of Service by Mail and Publication

Moving Party:          Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust

Resp. Party:             None

Specially Appearing Defendant Moet Fawaz's motion to Quash Service of Process is DENIED.  Defendant to respond within 30 days.

Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust's Motion for Order of Service by Mail and Publication is DENIED as MOOT.

I.           BACKGROUND

On May 9, 2022, Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust (“Sterling”), filed a Complaint against Defendant Mohammed M. Fawaz aka Mohammed Moet Fawaz aka Moet Fawaz alleging the following causes of action:

1.           Conversion

2.           Conspiracy to Commit Conversion/ Theft

3.           Theft/ Larceny

4.           Imposition of Constructive Trust and/or Accounting

5.           Unjust Enrichment

On August 1, 2022, Specially Appearing Defendant Moet Fawaz (“Fawaz”) moved the Court “for an order quashing service of the summons and complaint on the ground of the invalidity of service.” (Motion to Quash Service of Summons (“Quash”), p. 1:26-27.)

On September 8, 2022, Sterling opposed Fawaz’s motion to quash service of summons.

On September 8, 2022, moved the Court “in the alternative for an Order of Service by Mail and Publication on Defendant Mohammad Fawaz, et al., ("Defendant" or "Fawaz"). This motion is made pursuant to Cal. Code Civ. Pro. 415.50 on the grounds that (assuming Defendant's motion to quash is granted) all other methods of service reasonably available, which have been diligently pursued, have proven unavailable and ineffective.” (Motion for Order of Service by Mail and Publication (“Publication”), p. 2:5-9.)

On September 27, 2022, Fawaz replied to Sterling’s opposition to his motion to quash service of summons.

II.        ANALYSIS

A.          Evidentiary Objections

On September 27, 2022, Specially Appearing Defendant Moet Fawaz objected evidence found in the Declaration of Linda Toutant in Opposition to Motion to Quash. Objections Nos. 1-17 are OVERRULED.

B.          Request for Judicial Notice

On September 8, 2022, Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust requested that the Court take judicial notice of the following documents pursuant to Evidence Code 452(d).

1.           Item 1, the Registry of Action/Docket for Los Angeles Superior Court Case No. 20STCV09962, including identification of attorney Gary Kurtz as counsel for Defendant Mohammad Fawaz.

2.           Item 2, the Registry of Action/Docket for Los Angeles Superior Court Case No. 21STCV18053, including identification of attorney Gary Kurtz as counsel for Plaintiff Mohammad Fawaz.

The Court GRANTS Sterling’s requests for judicial notice. (Evid. Code, § 452, subd. (d).)

Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) StorMedia stated: “When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. (Ibid., see also Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)”

C.          Legal Standard

1.           Quash Service of Summons

“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].)

Plaintiffs 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).)

“Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (CCP § 415.20(c).)

“Section 415.20, subdivisions (a) and (b) authorize substitute service of process in lieu of personal delivery. Statutes governing substitute service shall be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 [cleaned up].) “Actual notice in section 473.5 means genuine knowledge of the party litigant. Actual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits. (Ellard, 94 Cal.App.4th at 547 [cleaned up].)

2.           Service by Publication

“A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:

1)  A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.

2)  The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.” (CCP § 415.50(a)(1,2).)

D.          Discussion

1.           Quash Service of Process

Registered process server Janos Wohner failed to serve Fawaz at his Liberty Canyon home six times between August 12, 2022 and August 30, 2022. (Toutant Decl., ¶ 2, Ex. 1.) On June 23, 2022, registered process server Mohammad Rafiquzzaman served process on Fawaz by depositing documents with Josh Marotta, Mailbox Manager at 9663 Santa Monica Blvd., Suite 867, Beverly Hills, CA 90210. (Toutant Decl., ¶ 3, Ex. 2, Proof of Service.)

Fawaz argues that he cannot be served at the private post office box at Santa Monica address because that box is “leased by an entity, not me [Fawaz] personally or in my personal capacity.” (Fawaz Decl., ¶ 3.) Fawaz’s argument implies that the specially appearing defendant is immune from service by mail in his individual capacity, since the private post office box he uses applies only to business entities with whom he is attached and the mailbox at his home is protected by a gate.

Sterling notes that the Santa Monica private post office box constitutes “the only address reasonably known” for Fawaz outside of his inaccessible Liberty Canyon home. (CCP § 415.20(c); Toutant Decl., ¶ 2, Ex. 1.) Further, the Court recognizes that actual notice of the present action has been achieved, with the deposit of process to the Liberty Canyon mailbox on May 25, 2022 (Toutant Decl., ¶ 9, Ex. 8, Hermes Decl., ¶¶ 2-4.), and mail service on June 2, 2022 and June 24, 2022 (Toutant Decl., ¶¶ 10, 11, Exs. 9, 10.) Fawaz identifies the Liberty Canyon mailbox as his “usual mailing address,” one known to Sterling. (Fawaz Decl., ¶¶ 4-5.)

Thus, the Court finds that Fawaz has actual notice of the party litigant. Under CCP § 415.20(c), the Court finds that substitute service of Fawaz occurred on June 23, 2022.

2.           Service by Publication

Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust's Motion for Order of Service by Mail and Publication is MOOT because the Court finds that Sterling served process on Fawaz by substitute service on June 23, 2022.

III.     CONCLUSION

Specially Appearing Defendant Moet Fawaz's motion to Quash Service of Process is DENIED.  Defendant to respond within 30 days.

Plaintiff Rochelle Sterling, Trustee of the Sterling Family Trust's Motion for Order of Service by Mail and Publication is DENIED as MOOT.

        The Case Management Conference is continued to November 10, 2023.  All parties to file a new, timely CMS prior to next CMC.