Judge Michelle C. Kim, Case Number: 23STCV14657, Date: 2024-01-11 Tentative Ruling

CASE: Marvin Fetalino, as Trustee of the MF Hero Trust v. Stephen Snyder, et al.

This is a contractual fraud case. On June 23, 2023, Plaintiff, Marvin Fetalino, as trustee of the MF Hero Trust, filed a Complaint against Defendants, Stephen Snyder (“Snyder”)[1] and 3327 Ione, LLC (“Ione”), for breach of an investment agreement in the sum of $50,000. Plaintiff filed a proof of service showing Snyder was served with the summons and complaint by substituted service on August 31, 2023. Plaintiff served the clerk of Snyder’s private mailbox at 14622 Ventura Ave, #10, PMB 2237, Sherman Oaks, CA 91403 and mailed the summons and complaint to the same address. The proof of service also states that Julia Franklin was served as Snyder’s agent of service of process.

On November 1, 2023, Snyder filed this motion to quash Plaintiff’s service of the summons and complaint.

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code Civ. Proc., § 415.10.) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leave 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 ... in the presence of ... a person apparently in charge ... and by thereafter mailing a copy of the summons and complaint by first-class mail ... to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (b).)

A defendant must file a motion to quash service of summons on or before the last day on which the defendant must plead unless the time is extended by stipulation or by a judge’s order for good case. (Code Civ. Proc., § 418.10, subd. (a)(1).) Although the notice of motion must designate a hearing date not more than 30 days after the notice is filed, scheduling a hearing date beyond the 30-day time period does not deprive the court of jurisdiction to consider the merits of the motion. (Olinick v. BMB Entertainment (2006) 139 Cal.App.4th 1286, 1295-96.)

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to ... the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].) However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42.) Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)

When a defendant moves to quash service of summons, 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.)

Plaintiff requests judicial notice of five documents. The unopposed requests are GRANTED. (Evid. Code, § 452, subd. (d)(1).)

Plaintiff submits ten objections to additional evidence submitted in support of Snyder’s reply. As the objections are not material to the Court’s disposition of this motion, the Court declines to rule on Plaintiff’s objections.

Snyder argues that the Court lacks personal jurisdiction over him for four reasons: (1) Plaintiff did not diligently attempt personal service prior to effectuating substituted service of the summons and complaint nor is there a declaration of diligence, (2) Julia Franklin is not Snyder’s authorized agent of service of process, (3) Snyder’s private mailbox is not a proper place for personal service, and (4) service was untimely because proof of service was not filed within 60 days of the Complaint. Each argument lacks merit.

First, Plaintiff provides evidence that its registered process server unsuccessfully attempted personal service at 5440 N. Tujunga Ave, No. 902, North Hollywood, CA 91601 ten times prior to effectuating substituted service. (Plaintiff’s Index of Exhibits, Ex. 7.) A declaration of diligence is attached. (Id.) Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank, supra, 199 Cal.App.4th at p. 390.) Furthermore, the Tujunga Ave. address is listed on the Secretary of Service Application. (Plaintiff’s Index of Exhibits, Ex. 6.) Plaintiff was diligent in attempting personal service.

Second, the proof of service reflects Snyder was served at the Sherman Oaks address which Snyder confirms is where he receives notice. (Mot., p. 3.) Minor, harmless deficiencies cannot defeat service of process. (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392.) Plaintiff served Snyder via the clerk of Snyder’s private mailbox and by mailing the summons and complaint to the same address.

Third, service at Snyder’s private mailbox is proper. “The plain language of section 415.20, subdivision (b) authorizes substitute service at a defendant’s usual mailing address, which includes a private/commercial post office box.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 546, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 4:87.3, p. 4–30.) After attempts to personally serve Snyder failed, Plaintiff effectuated proper service at Snyder’s Sherman Oaks address. The Court also notes that the Sherman Oaks address appears on Snyder’s pleadings.

Last, California Rules of Court, rule 3.110(b) requires proofs of service to be filed within 60 days of the Complaint. Filing beyond 60 days authorizes a court to issue an OSC re sanctions. (Cal. Rules of Court, rule 3.110(f).) The Court followed the prescribed procedure and issued an OSC on July 5, 2023. The Court subsequently discharged the OSC upon the filing of the proof of service. Snyder does not identify any valid grounds to quash service.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Snyder is self-represented.