Judge: Robert S. Draper, Case: 20STCV12956, Date: 2022-08-04 Tentative Ruling

Case Number: 20STCV12956    Hearing Date: August 4, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Specially-Appearing Defendant Selorm Oklu’s Motion to Quash Plaintiff’s Summons and Complaint is GRANTED.

FACTUAL BACKGROUND 

This is an action for Defamation and Negligence. The Complaint alleges as follows.

Plaintiff Taha Abou-Ramadan (“Plaintiff”) attended high school with Defendant Selorm Oklu (“Defendant”). (Compl. ¶ 8.) In high school, Plaintiff sustained a major knee injury of which Defendant was aware. (Compl. ¶ 9.) On May 4, 2019, Defendant coordinated an attack on Plaintiff intended to aggravate aforementioned knee injury. (Compl. ¶ 10.) Additionally, Defendant has coordinated a smear campaign against Plaintiff, spreading libelous and injurious information about him. (Compl. ¶ 15.)

PROCEDURAL HISTORY 

On April 1, 2020, Plaintiff filed the Complaint asserting three causes of action:

1.    Defamation (Libel);

2.    Defamation Per Se; and

3.    Negligence.

On December 7, 2020, Plaintiff filed a Non-Service Report as to Defendant’s supposed address at 11811 Washington Place, Apt. 207, Los Angeles, CA 90066 (“Washington Place Address”).

On December 8, 2020, Plaintiff filed a Declaration of Due Diligence.

On March 3, 2021, Plaintiff filed another Declaration of Due Diligence.

On March 5, 2021, Plaintiff filed an Application for Publication. That filing was rejected by the Clerk.

On April 1, 2021, Plaintiff filed a Proof of Personal service indicating Plaintiff was served by personal service on March 11, 2021, at 1422 Hi Point Street, Unit 106, Los Angeles, CA 90035 (“Hi Point Address”).

On April 22, 2021, Defendant filed a Motion to Quash Service of Summons. Defendant argued he had not resided at the Hi Point Address for seven months.

On May 12, 2021, Plaintiff filed a Declaration from process server Michael A. Watts stating that he had not personally delivered the summons to Defendant at the Hi Point Address but had left the summons on the doorstep.

On June 17, 2021, Department 24 of this Court granted Defendant’s Motion to Quash, finding that as the Process Server stated he left the summons at the Hi Point Address doorstep, personal service was no completed.

On June 24, 2021, Plaintiff filed a Proof of Service by Mail indicating that the summons was sent to the Hi Point Address.

On June 30, 2021, Plaintiff filed a Motion for Clarification of Court Order regarding the Court’s Order granting Defendant’s Motion to Quash.

Also on June 30, 2021, Plaintiff filed a Motion to Modify Court Order regarding same order.

On July 14, 2021, the case was reassigned to the instant Department 78.

On July 23, 2021, Defendant filed a Motion to Quash Service of Summons, again arguing that he no longer resided at the Hi Point address, and that Plaintiff failed to file the notice of acknowledgment and receipt.

On August 20, 2021, Plaintiff filed a Proof of Service by Substitute Service. This proof of service was identical to the initial, March 11, proof of service, except that Plaintiff replaced personal service with substitute service.

On August 24, 2021, this Court granted Defendant’s Motion to Quash Service as to the Proof of Service by Mail and noted that Plaintiff again used the March 11 declaration which the Hon. Judge Nieto previously ruled insufficient.

On January 27, 2022, Plaintiff filed another Proof of Service by Personal Service indicating that Process Server Aleksandr Bible (“Bible”) had personally served Defendant on November 25, 2021, at 619 Broken Bow Ln, Walnut, CA 91789 (the “Broken Bow Address”).

On May 5, 2022, Plaintiff again filed a Proof of Service by Personal Service for the November 25, 2021, service at the Broken Bow Address, this time accompanied by a Declaration from Bible. Bible’s declaration indicates that he served one “Jason D. Annigan, Registered Agent for Defendant Royal Coaches Auto Body & Towing” in the matter of Taha Abouramadan v. Royal Coaches Auto Body & Towing, Case no. 21PSCV00246. Plaintiff does not explain this discrepancy.

On May 27, 2022, Defendant filed the instant Motion to Quash Service of Summons.

On June 17, 2022, Plaintiff filed an Opposition.

On June 23, 2022, Defendant filed a Notice of Non-Opposition.

DISCUSSION 

I.               MOTION TO QUASH PLAINTIFF’S SUMMONS AND COMPLAINT

Specially-Appearing Defendant Selorm Oklu moves the Court to quash Plaintiff’s service of the Summons and Complaint pursuant to California Code of Civil Procedure section 418.10.

“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: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10 (a)(1).) 

Here, Plaintiff argues that Defendant’s Motion is untimely. Plaintiff has filed two proofs of service since this Court last granted Defendant’s Motion to Quash Plaintiff’s Service of Summons. Those proofs, filed on January 27, 2022, and May 5, 2022, both reflect service by personal service on the Broken Bow Address on November 25, 2021.

While Plaintiff is correct that, under section 418.10(a)(1), this would render Defendant’s Motion untimely, the Court finds that Plaintiff’s repeated filing of Proofs of Service, frequently describing the same attempts but with different supporting declarations and evidence, constitutes good cause for hearing the instant Motion. Moreover, the Court finds that there is no prejudice to Plaintiff to hear the Motion on its merits.

Defendant argues that Plaintiff’s November 15, 2021, service of summons was defective.

“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.” (Code Civ. Proc., § 415.10 [emphasis added].)  “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(b).) 

“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¿(2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence, of the facts stated in the return. (Cal. Evid. Code, § 647; see¿American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar¿(2011) 194 Cal.App.4th 1419, 1428; cf.¿People v. Chavez¿(1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption.  (See¿Yadegar, supra, 194 Cal.App.4th at 1428.) 

Plaintiff offers two pieces of evidence in support of his contention that service was proper. First, Plaintiff’s proof of service contains a declaration from Bible, the purported process server, regarding the November 15, 2021, personal service at the Broken Bow Address. However, said declaration states that Bible effectuated service on Jason D. Annigan, Registered Agent for Defendant Royal Coaches Auto Body & Towing, on February 1, 2022, at 114 N. Indian Hill Blvd, Suite “E” Claremont, CA 91711. (May 5 Proof of Service, Bible Decl., at p. 3.) This “evidence” is hardly indicative of proper service to the Defendant in the instant motion, and the Court expects a thorough explanation from Plaintiff as to why it was filed here.

Second, Plaintiff provides a “comprehensive background check” for Defendant that Plaintiff claims shows that both the Hi Point and Broken Bow addresses are “formidable and legitimate current addresses to serve the Defendant, Selorm Oklu.” (Opposition at p. 3.) Upon review, the background check in question shows that Plaintiff resided in the Hi Point Address until May 2021, and the Broken Bow Adress until October 2015. (Abou-Ramadan Decl., Exh. D at p. 1.) Again, a background report demonstrating that Defendant did not reside at either of the addresses in question at the time of service is hardly indicative of proper service.

Finally, Plaintiff argues that, as Defendant has actual notice of the instant action, service should be considered effective. While this might be compelling had Plaintiff displayed diligent and legitimate efforts to properly serve Defendant, Plaintiff’s use of a declaration from a process server in an entirely separate proceeding, and of a background report that supports Plaintiff’s contention that he no longer resides at the address in question hardly demonstrates diligent and legitimate efforts.

Accordingly, as Plaintiff has failed to prove the facts requisite to effectuate service, Defendant’s Motion to Quash Service of Summons is GRANTED.

II.             IMPROPER SERVICE OF MOTIONS

Finally, the Court notes that Plaintiff alleges that Defendant did not properly serve Plaintiff with the instant Motion (Opposition at p. 4.) And, Defendant filed a Notice of Non-Opposition, despite Plaintiff having timely filed an Opposition with the Court; the Court surmises that this is because Defendant did not receive service of Plaintiff’s Opposition.

The Court will address at hearing the need for proper service and will set an Order to Show Cause re: Contempt if any service gamesmanship persists.

DATED: August 4, 2022                                                            

__________________

 Hon. Robert S. Draper 

       Judge of the Superior Court