Judge Randolph M. Hammock, Case Number: 22STCV12867, Date: 2023-08-21 Tentative Ruling

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) [t]o 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).) “[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 pp. 1441-1442.) 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.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

(b) 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.

“[A]n individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801 [152 Cal. Rptr. 836].) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “‘reasonable diligence.’” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4-30 (rev. # 1, 2006) .)” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Here, Plaintiff has met its burden to demonstrate reasonable diligence to serve the Defendant, based on the following undisputed evidence. On August 3, 2023, Plaintiff’s counsel conducted a public records search, which revealed that Defendant was an agent for service of process for Quantum Enterprise Holdings, Inc. (Carr Decl. ¶ 3.) The address listed for Defendant as a registered agent was 444 S Flower St Ste 600 Los Angeles, CA 90071. (Id.) Counsel confirmed this information on the Secretary of State’s website. (Id.) This information remained on the website until at least March 28, 2024, when Plaintiff filed its opposition. (Id.)

Moreover, counsel learned that Defendant—a licensed California attorney—listed the same 444 S. Flower St. address as his contract address on the California State Bar website at least as recently as September 12, 2023. (Id. ¶ 4.) [FN 1]

Based on this information, the court has little trouble concluding that the 444 S. Flower St. address qualifies as Defendant’s “usual place of business.” (CCP § 415.20.) Defendant has not disputed this with any evidence.

With this information, Plaintiff first attempted to serve Defendant at 444 S. Flower St. on September 21 and 22, 2023. However, security denied process server Vincent Price access to the building or suite. (See Carr Decl., Exh. 1, “Declaration of Non Service.)

Then, on October 16, 2023, a second process server, Elver Barrera, attempted service at the address. Again, the process server was denied entrance to the suite by the front desk. (See Amended Proof of Service of Summons, Declaration of Reasonable Diligence, p. 2.)

A third process server, Daniel Benavides, returned to 444 S. Flower on October 27, 2023, but once again, was prevented entry by a security guard. (Id. at p. 2.) The same process server returned on November 4, 2023, to the same result. (Id.) At that point, the process server “delivered the documents to Project management office who identified themselves as the co-resident with identity confirmed by subject stating their name.” (See Amended Proof of Service of Summons, ¶ 5(b).) The process server followed delivery of the documents by mailing the same to the 444 S. Flower St. address to complete substitute service. (Id.)

Here, considering the evidence, Plaintiff has met its burden to establish that Defendant could not be served with reasonable diligence. Three different process servers appeared at Defendant’s usual place of business, but were denied access to the elevator on each attempt. “It is established that a defendant will not be permitted to defeat service by rendering physical service impossible.” (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal. App. 3d 1009, 1013; Bein v. Brechtel-Jochim Grp., Inc. (1992) 6 Cal. App. 4th 1387, 1393 [“Litigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access”].) Defendant does not dispute that he works at the place of attempted personal service. He also does not dispute that process servers have been denied entry at this location on at least four attempts.

Under the circumstances, service on security guards—who were apparently in charge of the properties and could and did deny the process servers access to the property—was sufficient to serve Defendant. Plaintiff has therefore met its burden to establish that the address at which substitute service occurred qualifies under the statute, and that the substitute service attempt was sufficient to confer jurisdiction over Defendant. “Statutes governing substitute service shall be ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.’” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201, quoting Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 [citations omitted].)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.