Judge: Monica Bachner, Case: 22STCV28709, Date: 2023-04-10 Tentative Ruling

Case Number: 22STCV28709    Hearing Date: April 10, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Specially Appearing Defendants Frank H. Whitehead III’s and The Law Offices of Frank H. Whitehead III’s motion to quash service of summons is denied.

Specially Appearing Defendants Frank H. Whitehead III’s and The Law Offices of Frank H. Whitehead III’s motion to set aside/vacate default judgment is denied as moot.

Defendants Frank H. Whitehead III (“Whitehead”) and The Law Offices of Frank H. Whitehead III (“Law Office”) (collectively, “Defendants”) make special appearances solely for the purpose of challenging jurisdiction and move for an order quashing service of the summons and complaint upon them on the grounds the court lacks jurisdiction over Defendants because Plaintiffs Shari Giuliany (“Giuliany”), Bill Demarest (“Demarest”), and Helen Ortega (“Ortega”) (collectively, “Plaintiffs”) have not affected proper service on Defendants.  (Notice of Motion, pgs. 1-2; C.C.P. §§415.10-415.50, §473(d).)  Defendants further move to set aside/vacate a default judgment (if any).  (Notice of Motion, pgs. 1-2; C.C.P. §473.5.)

1.     Defendants’ Motion to Quash Service of Summons

Background

On September 2, 2022, Plaintiffs filed their complaint against Defendants for (1) violation of the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq.; and (2) violation of the Rosenthal Fair Debt Collection Practices Act, Civ. Code §1788, et seq.  (See Complaint.)  Plaintiffs’ Complaint alleges at various and multiple times prior to the filing of the instant Complaint and within one year thereof, Defendants contacted Plaintiffs in connection with collection on an alleged consumer debt.  (Complaint ¶10.)  Plaintiffs allege Defendants sought to collect monies in connection with Plaintiffs’ residential leases of 322 Campus Drive, Main House, Room in Front House, and Room #2, Arcadia, CA 91007 (collectively, “Subject Property”).  (Complaint ¶11.)

On October 26, 2022, Plaintiffs filed two proofs of personal service indicating Defendants had each been personally served with the Summons and Complaint on October 24, 2022, at 7:42 PM at 4685 Tumblewood Dr., Brighton, CO 80601.  (Proof of Service Whitehead; Proof of Service Law Office.)  On January 5, 2023, Plaintiffs filed applications for publication on Defendants.  (1/5/23 Applications for Publication.)  On January 10, 2023, this Court rejected Plaintiff’s applications for publication.  On February 14, 2023, Plaintiffs filed applications for publication on Defendants in The Brighton Blade and The Los Angeles Times.  (2/14/23 Applications for Publication.)  On February 21, 2023, this Court granted Plaintiffs’ Application as to Defendant Whitehead and denied Plaintiffs’ Application as to Defendant Law Office.  (2/21/23 Order Publication Whitehead; 2/21/23 Order Publication Law Office.)  On March 13, 2023, Plaintiffs filed two proofs of service by mail indicating Defendants had been served with the Summons and Complaint by mail on December 12, 2022.  (Proof of Service Mail Whitehead; Proof of Service Mail Law Office.)

On November 28, 2022, Defendants filed the instant motion to quash service of summons.  On March 22, 2023, Plaintiffs filed their opposition.  As of the date of this hearing, Defendants have not filed a reply.

Motion to Quash

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.)  “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pgs. 1441-1442.)

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.”  (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.)  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; see also Elkman v. National States Insurance Co. (2009) 173 Cal.App.4th 1305, 1312-1313 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].)

California’s long-arm statute permits a court to exercise personal jurisdiction on any basis consistent with state or federal constitutional principles.  (C.C.P. §410.10.)  “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.  Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.”  (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449, citations omitted.)  Plaintiff must meet their initial burden by a preponderance of competent and relevant evidence, as shown in affidavits and documentary evidence.  (See Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.)

          “Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial . . . continuous and systematic.’ In such a case, ‘it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum.’ Such a defendant’s contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.”  (Vons Companies, Inc., 14 Cal.4th at pgs. 445-446, citations omitted.)

“If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits, and the ‘controversy is related to or ‘arises out of’ a defendant’s contacts with the forum.’”  (Id. at pg. 446, citations omitted.)  The purposeful availment test is only satisfied if the defendant purposefully and voluntarily directs its activities toward California so that the defendant should expect, because of the benefits it receives, to be subject to jurisdiction here based on its contacts with California.  (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)  Purposeful availment occurs when a nonresident defendant purposefully directs its activities at California residents, deliberately engages in significant activities here, or creates “continuing obligations” between itself and California residents.  (Id. at pg. 1063.)

“The crucial inquiry concerns the character of defendant’s activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.”  (Vons Companies, Inc., 14 Cal.4th at pg. 448, citing Cornelison v. Chaney (1976) 16 Cal.3d 143, 147-148).  Jurisdiction is proper when the defendant’s contacts proximately result from its actions that create a “substantial connection” with the forum state.  (Hanson v. Denckla (1958) 357 U.S. 235, 253.)

Plaintiffs demonstrate by a preponderance of evidence that Defendants have sufficient contacts with California for this Court to exercise specific jurisdiction over them.  Plaintiffs submitted evidence that Defendants made debt collection efforts against Plaintiffs, which are at issue in the instant action, and availed themselves of the California court system to file unlawful detainer actions against Plaintiffs on behalf of a client.  (Decl. of Greer ¶¶2, 3; Vons Companies, Inc., 14 Cal.4th at pg. 446.)  Plaintiffs demonstrate by a preponderance of evidence that Defendant Whitehead is an attorney licensed to practice law in the State of California.  (Decl. of Greer ¶7, Exh. C.)  Plaintiffs demonstrate by a preponderance of evidence that Defendant Law Office was listed on the pleadings in the unlawful detainer actions at issue in the instant case.  (Decl. of Greer ¶5.)  Plaintiffs sufficiently demonstrate by a preponderance of evidence that the controversy in Plaintiffs’ Complaint arises out of or is related to Defendants’ alleged contacts with California with regard to their debt collection efforts.  (Decl. of Greer ¶4, Exh. A.)  California has an inherent interest in adjudicating disputes involving California residents who were wronged in the state, especially where claims are under California law, and it is in Plaintiffs’ interest to obtain effective relief in California given that they not only reside here, but also the wrongs they allege were committed in California and California has substantial interest in providing a convenient forum for its residents. Accordingly, the Court finds Plaintiffs have met their burden of submitting evidence to establish specific jurisdiction over Defendants, shifting the burden to Defendants to demonstrate that the exercise of jurisdiction would be unreasonable.

Defendants have failed to meet their burden to demonstrate the Court’s exercise of jurisdiction would be unreasonable.  Defendants’ argument that they were not properly served by personal or substituted service are unavailing, as Plaintiffs have filed proof of service by mail, with a mailing date of December 12, 2022, which was effective service as of December 22, 2022.  (Proof of Service Mail Whitehead; Proof of Service Mail Law Office.)  Plaintiffs’ service by mail is rebuttably presumed to be proper, and Defendants do not challenge service on this basis.

          Based on the foregoing, Defendants’ motion to quash service of summons is denied.

2.     Defendants’ Motion to Set Aside/Vacate Default Judgment

C.C.P. §473(b)

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . .”  (C.C.P. §473(b).)

Plaintiffs have not filed defaults against Defendants, and no default judgment has been entered against Defendants in the instant case.

Accordingly, Defendants’ motion to set aside/vacate the entry of default judgment is denied as moot. 

Dated:  April 6, 2023

Hon. Daniel P. Ramirez

Judge of the Superior Court