Judge Ronald F. Frank, Case 21STCV27240 2023-01-04 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV27240, Date: 2023-01-04 Tentative Ruling

Case Number: 21STCV27240 Hearing Date: January 4, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 4, 2023¿¿

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CASE NUMBER: 21STCV27240

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CASE NAME: Omar Shaheed, Ishiaketi Tims v. Travelodge Hotels, Inc., et al

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MOVING PARTY: Defendants, LAX Hotel Venture, Inc. dba Travelodge LAX South; Sanjay Patel, Wyndham Hotels & Resorts, Inc.

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RESPONDING PARTY: None (plaintiffs did not oppose the motion)

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TRIAL DATE: None set¿

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MOTION:¿ (1) Motion to Quash

Tentative Rulings: (1) GRANTED

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I. BACKGROUND¿¿

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A. Factual¿¿

On July 23, 2021, Plaintiffs, Omar Shaheed and Ishiaketi Tims (collectively, “Plaintiffs”) filed a complaint against Defendants, Travelodge Hotels, Inc., Wyndham Hotels & Resorts, Inc., Sanjay Patel, and DOES 1 through 20. On December 23, 2021, Plaintiffs filed a first amended complaint. On May 18, 2022, Plaintiff filed a Second Amended Complaint alleging causes of action for: (1) Negligence; (2) Premises Liability; (3) Intentional Infliction of Emotional Distress; and (4) Concealment.

Defendants now assert that service was not proper on Defendant, Wyndham Hotels & Resorts, Inc., a separately named entity from Mr. Patel or Travelodge. There is a separate proof of service as to Wyndham.

B. Procedural¿¿

On November 16, 2022, Defendant Wyndham Hotels & Resorts, Inc. filed this Motion to Quash Service. To date, no opposition has been filed.

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¿II. ANALYSIS¿

A. Legal Standard ¿

“[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 1441-1442.) A 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 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.)

Code of Civil Procedure § 416.10, provides:

“A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:

(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable).

(b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.

(d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.”

(Code Civ. Proc., §¿416.10, subd. (a-d).)

However, If the business organization’s form is unknown, Code of Civil Procedure § 415.95, provides: “(a) A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

“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 presumption of valid service. (See¿American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See¿id.) 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.)

B. Discussion

Defendant’s Motion to Quash addresses the service of process of named defendant corporation, Wyndham Hotels & Resorts, Inc.. Defendant also notes that LAX Venture Hotel, Inc. dba Travelodge LAX South is not the Agent for Service of Process for Wyndham Hotels & Resorts, Inc. (“Wyndham”). The Proof of Service for Wyndham filed November 17, 2021, notes that it was personally served on Sunny Bundhu, a “person authorized to accept service,” at 1804 E. Sycamore Ave., El Segundo, CA 90245. Defendant notes that Wyndham is a Delaware corporation with its agent for Service of Process being Corporate Creations Network, Inc. (Declaration of Napoleon G. Tercero, III (“Tercero Decl.” ¶ 5, Exhibit B.)

Plaintiff’s process server noted in his declaration that he served “Sunny Bundhu – Person authorized to accept service.” However, Defendant argues that this individual is not authorized to accept service as the agent for Wyndham is Corporate Creations Network, Inc. Defendants also assert that Plaintiffs have not and cannot establish that Sunny Bundhu is president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by Wyndham to receive service of process. As such, Defendant argues that this Court lacks personal jurisdiction over Wyndham.

Plaintiffs have not responded to the motion to quash, nor did they respond to the original motion to quash that the Court took off calendar when there was no appearance by defense counsel at the hearing on the original motion. Plaintiffs have not submitted any further evidence besides the Process server Declaration contending that an “authorized agent” in Los Angeles was a proper person to serve, which in the Court’s view is insufficient to overcome Wyndham’s evidence that its corporate registered agent is located in Cherry Hill, NJ.

The Court thus grants the instant motion, without prejudice to plaintiffs serving the New Jersey corporation in New Jersey.

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IIII. CONCLUSION¿¿

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For the foregoing reasons, Defendants’ Motion to Quash is GRANTED.

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Moving party is ordered to give notice.¿¿¿¿