Judge: Monica Bachner, Case: 21STCV45865, Date: 2022-09-19 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV45865    Hearing Date: September 19, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Specially Appearing Defendant Maria Latorre’s motion to quash service of the summons and complaint is continued. The Court sets an evidentiary hearing for October 21, 2022 at 10:00 a.m.

          Specially Appearing Defendant Maria Latorre (“Defendant”) moves for an order quashing service of the summons and complaint by Plaintiff Jairo Benavides (“Benavides”) (“Plaintiff”) for lack of personal jurisdiction.  (Notice of Motion, pg. 1; C.C.P. §§418.10(a)(1).)

          Background of Action

          On December 15, 2021, Plaintiff filed a Complaint for wrongful termination, against Defendant. Plaintiff filed the operative First Amended Complaint (“FAC”) on December 17, 2021, alleging twelve causes of action against Defendant, Robin Estates, LLC (“Robin Estates”), and John Kocinski (“Kocinski”) (collectively, “Defendants”). 

Plaintiff alleges Defendant is and was an individual living in California operating as an owner of Robin Estates.  (FAC ¶3.)  Plaintiff alleges jurisdiction in this Court is proper because the acts and omission that give rise to Plaintiff’s claims took place in the County of Los Angeles, California, as Plaintiff was employed by Defendants in the County of Los Angeles, California, Defendants transact their business in the County, and Defendants are citizens of the State of California.  (FAC ¶¶10-11.)  

On January 5, 2022, Plaintiff filed a proof of service of summons and complaint indicating Defendant was served by substituted service on January 3, 2022, at 2:40 p.m. at 9240 Robin Drive, Los Angeles, CA 90069 (“Robin Drive”), by service on co-occupant Kocinski.  (Proof of Service, pg. 1.)  The proof of service attached a declaration of diligence demonstrating three prior service attempts, and a declaration of mailing indicating that the process server mailed copies of the summons and complaint to Defendant at the Robin Address on January 5, 2022.  On January 5, 2022, Plaintiff filed an additional proof of service indicating the summons and complaint were personally served on Kocinski on January 3, 2022, at 2:40 p.m., also at Robin Drive. On March 11, 2022, Defendant specially appeared to file the instant motion.  (Notice of Motion, pg. 1.)

Motion to Quash

C.C.P. §418.10(a)(1) provides that, “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… To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”

In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439, as modified on denial of reh’g (May 26, 1994), citing C.C.P. §410.50.)  Where a plaintiff attempts substituted service on an unauthorized person, service of the summons is defective, and the court does not have personal jurisdiction over the defendant.  (C.C.P. §416.90; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 411-12.)  “If the process is delivered to an agent of defendant, such agent must be one who is authorized by law or appointment to receive service of process, and the agent of an individual for other purposes is not necessarily authorized to receive such process.” (Summers, supra, 140 Cal.App.4th at p. 411-412 (quoting Judicial Council comments on C.C.P. §416.90).)

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’”  (Summers v. McClanahan, supra, 140 Cal.App.4th at 413.) “If the process is delivered to an agent of defendant, such agent must be one who is authorized by law or appointment to receive service of process, and the agent of an individual for other purposes is not necessarily authorized to receive such process.” (Summers, supra, 140 Cal.App.4th at p. 411-12.)

“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… 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s… usual place of business… in the presence of… a person apparently in charge of his or her… place of business… 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.” (C.C.P. §415.20(b) (emphasis added.).)  The Court notes the comments to C.C.P. §415.20 define “usual place of business” as, “a defendant's customary place of employment as well as his own business enterprise.” (Emphasis added.)

Defendant moves to quash Plaintiff’s service of process and proof of service on the basis of defective service.  (Motion, pg. 1.)  Defendant asserts Plaintiff attempted to serve her with the Summons and the Complaint by leaving a copy of the pleadings on the ground at the front of the house near the street next Robin Drive where Kocinski found them.  (Motion, pgs. 2, 4; see Decl. of Kocinski ¶3.)  Defendant asserts that no one, other that counsel McEwan, has given her any papers related to Plaintiff’s action.  (Decl. of Latorre ¶8.)  Defendant argues service was defective because Defendant does not reside at Robin Drive.  (Motion, pg. 3.)  Further, Defendant states that she resides in Europe and not in the United States (“USA”) and has not she resided in the USA for many years, since before Plaintiff’s case was filed.  (Decl. of Latorre ¶¶2-3.)  Defendant declares she does not maintain a residence or an office in the USA.  (Decl. of Latorre ¶¶4-5.)  Therefore, Defendant asserts the process server did not deliver the court papers in compliance with C.C.P. §415.20(a) with a “person who is apparently in charge” or with a “competent member of the household or a person apparently in charge” per C.C.P. §415.20(b).  (Motion, pg. 4.)

In Opposition, Plaintiff argues that prior to serving Defendant via substituted service on January 3, 2022, at her “usual place of business,” the process server exercised reasonable diligence in his three attempts to personally serve Defendant at Robin Drive address on December 23, 26, and 29, 2021.  (Opposition, pg. 4; Decl. of Park ¶7, Exh. 3.)  Plaintiff argues Defendant was properly served via substituted service at Robin Drive because Robin Estate’s Statement of Information filing, current as of December 27, 2021, lists Defendant as a manager and/or member and lists Robin Drive as Defendant’s address.  (Opposition, pg. 4, Decl. of Park ¶3, Exh. 1.)  Plaintiff also challenges Kocinski’s claim that he was never handed Plaintiff’s summons and complaint for Defendant, seeing as Kocinski never contested service propounded upon him, which occurred simultaneously with service upon Defendant.  (Opposition, pgs. 4-5; see Decl. of ¶¶6-7, Exhs. 2-3.)

          There is sufficient evidence suggesting Defendant was properly served with the summons and complaint via substituted service; however, in light of conflicting evidence, the Court sets an evidentiary hearing.  The evidence suggests Kocinski was sub-served with copies of the complaint, summons, and related documents on behalf of Defendant at Defendant’s usual place of business after the process server attempted service on Defendant at Robin Drive three times.  The Statement of Information for Robin Estates indicates Defendant’s address is the same as the business address, at Robin Drive.  As such, there is evidence Robin Drive is Defendant’s usual place of business for purposes of service, given it is the address of Defendant’s business enterprise.  However, there is a conflict of evidence as Defendant declares she does not maintain an office and/or business office in the USA.  (Decl. of Latorre ¶¶6-7.) 

In further support of proper service, the Proof of Service indicates the process server left the documents to be served on Defendant “with or in the presence” of Kocinski on January 3, 2022.  However, there is a conflict of evidence given Kocinski declares that two days later, on January 5, 2022, he went outside Robin Drive “and found court papers related to the above titled case on the ground at the front of the house near the street.” (Decl. of Kocinski ¶3.)  Kocinski also declares that “no one personally handed [him] said documents.” (Decl. of Kocinski ¶3.)  While Plaintiff did not file any evidentiary objections to Defendant’s evidence in support of her motion, the Court notes this declaration is vague as to whether the documents Kocinski is referring to are the summons and complaint addressed to Defendant, given Kocinski does not identify the documents other than referring to them as “court papers.”  In addition, Kocinski does not address whether a process server personally served him with documents on January 3, 2022, especially considering the proofs of service on Defendants indicate the process server effectuated service at the exact same time, 2:40 p.m.  Regardless, there is a conflict of evidence given the process server’s declaration that documents were left in Kocinski’s presence, and Kocinski’s statement that he was ever personally handed or given documents in this case. 

Defendant’s assertion she did not receive copies of the documents does not render the service by substituted service ineffective, given the Proof of Service indicates the documents were mailed to the address at which they were served, effectuating service. (Decl. of Latorre ¶8.)  Whether Defendant designated Kocinski as her agent for purposes of service of process is not relevant given Plaintiff served Defendant by substituted service, pursuant to C.C.P. §415.20(b), as service could not be effected by C.C.P. §416.90, not a person authorized to receive service on Defendant’s behalf as in Summers.  

Based on the foregoing, Defendant’s motion to quash is continued. The court sets an evidentiary hearing for October 21, 2022 at 10:00 a.m.

Dated:  September ______, 2022

Hon. Monica Bachner

Judge of the Superior Court