Judge: Stephen P. Pfahler, Case: 23STCV04164, Date: 2024-01-30 Tentative Ruling

Case Number: 23STCV04164    Hearing Date: January 30, 2024    Dept: 68

Dept. 68

Date: 1-30-24

Case #23STCV04164

QUASH

MOVING PARTY: Defendant, Mark Geragos

RESPONDING PARTY: Plaintiff, Donald Erikson

RELIEF REQUESTED

Motion to Quash Service of the Summons

SUMMARY OF ACTION

Plaintiff David Erikson, “an elite and highly experienced attorney” accepted an “offer to act as “Of Counsel” for the law firm Geragos & Geragos. In addition to handling the equivalent of an “entire intellectual property department” and handling “two raging litigation matters,” Plaintiff also contributed more than 2,000 hours of work in other “important and lucrative civil matters” for the firm. While the parties engaged in some form of moderately specified compensation agreement, Plaintiff maintains Defendant in fact “stiffed” Plaintiff on some or all promised compensation, notwithstanding the tremendous wealth of Mark Geragos. While the parties sought a compensation payment, no satisfactory agreement materialized.

On February 24, 2023, Plaintiff filed a complaint for Quantum Meruit, Breach of Contract, Open Book Account, Account Stated, Promissory Fraud, and Unjust Enrichment.

RULING: Denied.

Request for Judicial Notice: Granted.

The court takes judicial notice of the existence of the filed pleadings, declarations, and orders. [Declaration of David Erikson.] The court declines to take judicial notice of any content of the pleadings for purposes of the truth of the matter asserted, or any conclusions of fact in any court order, as applicable.

Evidentiary Objections: Overruled.

Specially appearing defendant Mark Geragos moves to quash service of the summons and complaint on grounds of lack of direct service, and invalid substituted service. Defendant maintains that substituted at the residence was invalid and Plaintiff should have instead followed with service at the business address. Plaintiff in opposition contends the motion is procedurally improper, and service at the residence was required due to a security guard at the business address both denying any affiliation with the Geragos firm, and otherwise barring access to the office or maintaining no such office existed at the visited building. Plaintiff then cites other cases as examples of “frivolous” motions to quash. Defendant in reply maintain Plaintiff fails to establish valid service.

Given the special setting of the motion by the court, the court considers the motions on the substantive question, and declines to dismiss the motion based on the filing date.

A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.) The proof of service was executed by a licensed process server by leaving the summons and complaint with a person apparently in charge identified as Marcelina Reyes on October 17, 2023. The proof of service complies, including a declaration of diligence showing three prior attempts, and mailing upon completion of service.

“The return of a process server registered [under] Division 8 of the Business and Professions code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.) “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, subd. (b).) Service in this context is allowed “upon a person upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.’” (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393; see Ellard v. Conway (2001) 94 Cal.App.4th 540, 546 (footnote 3).)

The parties do not factually dispute the process server in fact left the papers with Reyes on the premises. The motion lacks any specific argument denying any basis of authority for Reyes to accept service of process simply as a person present in the household at the time of service.

The motion is therefore denied. Defendant to file a responsive pleading within 10 days of this order.

Moving Defendant to provide notice.