Judge: Michael P. Linfield, Case: 23STCV28298, Date: 2024-05-14 Tentative Ruling

Case Number: 23STCV28298    Hearing Date: May 14, 2024    Dept: 34

SUBJECT:        Motion to Quash Summons

Moving Party: Specially-Appearing Defendant Hooman Nissani

Resp. Party:    None

The Motion to Quash Summons is GRANTED. The Proof of Service of Summons filed regarding Hooman M. Nissani is QUASHED.

BACKGROUND:

On November 17, 2023, Plaintiff Tesoro Refining & Marketing Company LLC filed its Complaint against Defendants Slauson Gas Station Inc. and Hooman M. Nissani on causes of action for breach of contract, unjust enrichment/quantum meruit, and breach of guaranty agreement.

On January 12, 2024, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons as to Defendant Slauson Gas Station Inc.

On January 29, 2024, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons as to Defendant Hooman M. Nissani.

On March 28, 2024, Specially-Appearing Defendant Hooman Nissani filed his Motion to Quash Summons. Specially-Appearing Defendant concurrently filed Declaration of Hooman Nissani.

No opposition or other response has been filed to the Motion to Quash Summons.

ANALYSIS:

I.          Legal Standard

“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).)

II.       Discussion

On January 29, 2024, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons as to Defendant Hooman M. Nissani.

The Proof of Service states that substitute service occurred at 3:50 p.m. at 10094 Cielo Drive, Beverly Hills, California 90210, when Daniel Mikulasch (who is a registered California process server) left the service package with a woman named “Nancy,” a 70-year-old Middle Eastern woman, 5’ 6’’ tall, 150 pounds in weight, with brown eyes and brown hair, who purported to be the mother of Defendant Hooman M. Nissani.

        Specially-Appearing Defendant moves the Court to quash the proof of service of summons. (Motion to Quash Summons, p. 7:3–5.)

Specially-Appearing Defendant argues: (1) that Plaintiff bears the burden to prove effective service; (2) that Specially-Appearing Defendant was not served pursuant to California law; (3) that the motion must be granted because the Court never acquired jurisdiction over Specially-Appearing Defendant; and (4) that the motion does not constitute a general appearance. (Motion to Quash Summons, pp. 4:2, 4:17, 4:24–25, 5:12–13.)

Among other things, Specially-Appearing Defendant declares: (1) that he has not been served and has not seen the Complaint; (2) that he does not live at 10094 Cielo Drive, Beverly Hills, California 90210; (3) that his mother is not “Nancy”; (4) that he does not know who “Nancy” is; and (5) that neither a person named “Nancy” nor Specially-Appearing Defendant’s actual mother are authorized to accept service on his behalf. (Decl. Nissani, ¶¶ 3–5.)

Plaintiff has not opposed or otherwise responded to the Motion to Quash Summons.

The Court agrees with Specially-Appearing Defendant’s arguments. The Proof of Service of Summons filed on January 29, 2024 is defective. Plaintiff has not met its burden to demonstrate that Specially-Appearing Defendant has been properly served. Specially-Appearing Defendant’s special appearance does not constitute a general appearance, and Specially-Appearing Defendant has not generally appeared in this matter.

III.     Conclusion

The Motion to Quash Summons is GRANTED. The Proof of Service of Summons filed regarding Hooman M. Nissani is QUASHED.