Judge: Shirley K. Watkins, Case: 23VECV00750, Date: 2023-04-19 Tentative Ruling

Case Number: 23VECV00750    Hearing Date: April 19, 2023    Dept: T

23VECV00750 SRI, LLC vs PABLO TORRES, AN INDIVIDUAL

[TENTATIVE] ORDER:  Defendant Pablo Torres and Defendant Providencia LLC’s Motions to Quash Service of Summons and Complaint are both DENIED.  Defendant Pablo Torres and Defendant Providencia LLC are ordered to file a response to the Complaint within 5 days of notice of the ruling of this hearing.

Introduction

          Defendants Pablo Torres (Torres) and Providencia LLC (Providencia) separately moved to quash the service of Plaintiff SRI, LLC’s (Plaintiff) summons and complaint.           

Discussion 

          “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 facts requisite to an effective service.”  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)  A filed proof of service creates a rebuttable presumption that service was proper, if it complies with applicable statutory requirements.  (Floveyor International v. Superior Court (1997) 59 Cal.App.4th 789, 795.)  The return of a registered process server establishes a presumption of the facts stated. (Evid. Code sec. 647.) 

Providencia argued that substituted service was ineffectual because Plaintiff did not use reasonable diligence in attempting to personally serve Providencia.  Providencia argued that its agent for service of process, Torres, was in the building at the time of alleged substitute service.  However, as argued by Plaintiff, substituted service upon an entity does not require reasonable diligence in personal service prior to substituted service.  (Code Civ. Proc. sec. 415.20(a).)  Plaintiff met its burden to dispute Providencia’s reasonable diligence argument.  Providencia’s argument as to reasonable diligence is unpersuasive.

          Providencia then argued that substituted service was ineffectual because Plaintiff failed to leave the summons and complaint with a person apparently in charge of the place of business and failed to mail the summons and complaint to the correct address where the documents were left. 

Plaintiff’s proof of service stated that service was completed by a registered process server.  The proof of service of the summons and complaint upon Providencia showed that the registered process server left the documents with “Margarita Funes, Assistant Manager/Person Authorized to Accept.”    Ms. Funes being an Assistant Manager  or even a “cashier supervisor” is sufficient to show that she was a “person apparently in charge of the business” because she admitted to holding a supervisory or managerial position over other employees at the business.  Despite the untimely filing of the declaration of Ms. Funes, Providencia reliance upon Ms. Funes’ declaration is insufficient to rebut the presumption of the facts in the proof of service.  Ms. Funes essentially supports the proof of service that the documents were served upon her and that she was apparently in charge.  Providencia did not overcome the presumption.  Plaintiff’s proof of service shows compliance with the statute’s requirement to leave the documents with the “person apparently in charge.”  It also appears that the "office" is only accessible by going through the restaurant and there is no evidence that it is available to the public.  Defendant's position is disingenuous.

As to the subsequent mailing, the process server was required to mail the copies to the person to be served “where the copies were left.”  (Code Civ. Proc. sec. 415.20(a).)  Because substitute service was made at 8700 Van Nuys Blvd., as seen on the proof of service, the mailing was to be sent to that same address.  Plaintiff properly mailed the summons and complaint to the place where the documents “were left.” 

Providencia provided that their agent for service of process, Torres, is located at a different address  (8640 Van Nuys Blvd) as seen on its Statement of Information (SOI.)  (Corrected Torres Decl. par. 4, Exh. A.)  Ms. Funes attested that she works at the store which is located at 8640 Van Nuys Blvd. and that she received the documents from the process server at the store. (Funes Decl. pars. 2-5.)  However, Torres admitted that he received in the mail the documents despite the envelopes being addressed to 8700 Van Nuys Blvd.  This admission provides a discrepancy in the address of the store.  The U.S. Postal Service would not have delivered the documents to 8640 Van Nuys Blvd. if the envelope was addressed to 8700 Van Nuys Blvd.  Providencia’s evidence contains contradictory facts.  Because Providencia’s alleged facts are conflicting, the Court finds that the declarations of Torres and Funes lack credibility specifically as to the business address and do not rebut the presumption of established facts within the registered process server’s proof of service. 

The Court also finds that Providencia’s dispute as to the mailing address is also unsubstantiated since the lease agreement identified the address of the leased premise to be 8700 Van Nuys Blvd. As the lease is for 8700 Van Nuys Blvd., it was served at 8700 Van Nuys Blvd. and it was mailed to 8700 Van Nuys Blvd. and the defendant received it, there is sufficient showing that the mailing complied with the substituted service statute.

          Providencia’s motion to quash is DENIED. 

          Torres argued that substituted service was ineffectual because Plaintiff did not use reasonable diligence in attempting to personally serve Torres prior to substituted service.  Torres argued that the process server’s attempt at personal service only involved two attempts because the process server asked on two separate occasions whether Torres was present and the process server did not ask at the third attempt.  However, two attempts at personal service (whether the process server asked or not as to Torres’ presence) is sufficient to show a reasonable and good faith effort to personally serve Torres.  “[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.) [Bolding added.]”  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)  Because the process server attempted two times to personally serve Torres, Plaintiff sufficiently meets its burden to show proper service and Torres did not rebut the presumption.  There is no evidence of what business is actually at 8700 Van Nuys Blvd., what business is at 8640 Van Nuys Blvd., and where the access points are to the public for 8700 and 8640.

          Torres argued that the process server did not leave the documents with a person either “apparently in charge of  [the] … place of business” or “closely connected” to Torres.  Plaintiff served Torres at his usual place of business and left the documents with Funes, the assistant manager or a cashier supervisor.  Despite Funes’ title being different, Funes’ declaration is sufficient to show that she has a managerial role at the business and thus there are sufficient facts to show that she was a person apparently in charge of the business.  With these facts, there is sufficient showing of compliance with the substitute service statute. 

          Torres’ argument as to “close connection” is also unsubstantiated by his own evidence.  Ms. Funes admitted that she knows Torres because she testified that she told the process server that Torres was not at the store in response to the process server’s question and that Torres “comes and goes.”  The reasonable inference from these facts is that Funes knows what Torres looks like and has some knowledge of his location.  The Court of Appeal opined that a manager of a private/commercial post office box facility having knowledge of the defendant was sufficient to show a “close connection.”  (Ellard v Conway (2001) 94 Cal.App.4th 540, 546.)  Here, the connection is shown because Funes knows of Torres.  Further, Torres is personally involved in the operation of the store and Funes supervises the cashiers.  (Corrected Torres Decl. par. 2 and Funes Decl. par. 4.)  It is inferred that Funes would know Torres because both Torres and Funes are operational staff members and presumably work closely with each other.  The evidence submitted is sufficient to show both close connection and Funes apparently being in charge.  Torres’ argument is unpersuasive.

          Torres lastly argued that the address where mailing occurred was not his place of business’s correct mailing address (8700 Van Nuys Blvd. vs. 8640 Van Nus Blvd.)  However, this argument is grounded on the same facts submitted by Providencia.  The Court reviewed the facts presented by Providencia and did not find them to be credible.  Because Torres is using the same facts to assert the same argument as to improper mailing, the Court again finds that the facts presented are not credible.  The argument as to improper mailing is not persuasive. 

          Torres’ motion to quash is DENIED.  Defendant Pablo Torres and Defendant Providencia LLC are ordered to file a response to the Complaint within 5 days of notice of the ruling of this hearing.

          IT IS SO ORDERED, CLERK TO GIVE NOTICE.