Judge Michael P. Linfield, Case Number: 23STCV02414, Date: 2023-12-12 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV02414, Date: 2023-12-12 Tentative Ruling

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The Motion to Quash is GRANTED. The service of the Summons and Complaint on Specially-Appearing Defendant Jason Oh is QUASHED.

On February 3, 2023, Plaintiff Gene Park filed his Complaint against Defendants Camino Industries LLC, Philip Camino, Smith Dok, and Jason Oh on causes of action arising from Plaintiff’s employment by Defendants.

On July 18, 2023, by request of Plaintiff, the Clerk’s Office entered default on Defendants Smith Dok and Jason Oh.

On October 17, 2023, by request of Plaintiff, the Clerk’s Office entered default on Camino Industries LLC and Philip Camino.

On December 12, 2023, the Court set aside the default on Specially-Appearing Defendant Jason Oh and allowed him to file his proposed motion to quash service of summons.

On December 13, 2023, Specially-Appearing Defendant Jason Oh filed his Motion to Quash.

On January 12, 2024, Specially-Appearing Defendant filed his Notice of Non-Receipt of Opposition.

On January 12, 2024, Plaintiff filed his Opposition to the Motion to Quash. In support of his Opposition, Plaintiff concurrently filed his Request for Judicial Notice.

On January 16, 2024, Specially-Appearing Defendant filed his Reply in support of Motion to Quash Service. Specially-Appearing Defendant concurrently filed Objections to the Declaration of David Osorio Dated January 12, 2024.

Specially-Appearing Defendant filed evidentiary objections to portions of the Declaration of David Osorio. The following are the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED

Plaintiff requests that the Court take judicial notice of its Notice of Ruling on Specially-Appearing Defendant’s Motion to Set Aside Default in this matter.

The Court DENIES as superfluous judicial notice to this item. Any party that wishes to draw the Court’s attention to an item filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.” (Code Civ. Proc., § 415.10.)

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (a).)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)

“A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code Civ. Proc., § 415.30, subd. (a).)

“Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.” (Code Civ. Proc., § 415.30, subd. (c).)

“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.” (Code Civ. Proc., § 415.40.)

“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.” (Code Civ. Proc., § 418.10, subd. (a)(1).)

Specially-Appearing Defendant moves the Court to quash service of the Summons and the Complaint as to him, arguing that substitute service was attempted but not effected. (Motion to Quash, pp. 4:9–10, 4:18, 6:6–7.)

Plaintiff opposes the Motion to Quash, arguing: (1) that service is proper here because it was proper in another case where service was effected on Specially-Appearing Defendant at that same address; and (2) that service was proper because Specially-Appearing Defendant is the sole member of the entity who operates the restaurant at the address served, making it his usual place of business. (Opposition, pp. 5:19–25, 6:1–8.)

Specially-Appearing Defendant reiterates his arguments in his Reply, including that the address where he was allegedly served by substitution is not his usual place of business. (Reply, p. 2:19.)

First, service by a different plaintiff in a different case has no bearing on this case, particularly as that case has not yet been resolved on the merits. Put differently, nothing in that case has any binding or preclusive effect on this case.

Second, “[w]hen 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.” (Dill v. Berquist Constr. Co. (1994) 24 Cal.App.4th 1426, 1439–1440, citations omitted.)

In this case, Plaintiff’s Counsel admits to submitting Plaintiff’s Opposition after the deadline to do so. But even were the Cour to consider the opposition, Specially-Appearing Defendant declares under penalty of perjury that “13050 San Vicente Blvd., Los Angeles is not [his] usual place of business” and that his “principal business address” is the location where he manages his investments from. (Motion to Quash, Decl. Oh, ¶¶ 3, 7.)

While there is no reason why an individual could not have multiple usual places of business, and it could very well be true that Specially-Appearing Defendant, through EELE Holding LLC, does have complete control the current restaurant at 13050 San Vicente Boulevard, Los Angeles, California 90049, both of those details are irrelevant if this specific address is not Specially-Appearing Defendant’s “usual place of business.” (Opposition, Exhs. A, B.) Here, Plaintiff has not met his burden to show the facts requisite to service, including that 13050 San Vicente Boulevard, Los Angeles, California 90049 is actually Specially-Appearing Defendant’s usual place of business.

Lastly, the Court notes that Plaintiff is unlikely to be prejudiced by this determination given that, according to the documents Plaintiff provided, it appears Specially-Appearing Defendant listed his business address as 4251 W. Oquendo Road, Las Vegas, Nevada 89118. (Opposition, Exh. B.) The Court is aware of no reason that Defendant Oh cannot be served at that address.

The Motion to Quash is GRANTED. The service of the Summons and Complaint on Specially-Appearing Defendant Jason Oh is QUASHED.