Judge: Steven A. Ellis, Case: 23STCV05876, Date: 2024-09-05 Tentative Ruling

Case Number: 23STCV05876    Hearing Date: September 5, 2024    Dept: 29

Mirman v. Okkes
23STCV05876
Defendant’s Motion to Quash Service of Summons

TENTATIVE

The Motion to Quash is DENIED.

BACKGROUND 

On March 16, 2023, Linda Mirman, Jacob Mirman, Miriam Alter, and Rochel Gershenfeld (collectively “Plaintiffs”) filed a complaint against Onen Okkes (“Okkes”) and Does 1 through 10 for motor vehicle negligence and general negligence arising out of an accident in which, Plaintiffs allege, a vehicle struck and killed a pedestrian, Julian Mirman (husband and father of Plaintiffs).

On October 16, 2023, Plaintiffs amended the complaint to name Roy Bahamam (“Bahamam”) as Doe 1, City of Los Angeles as Doe 2, The Los Angeles Department of Water and Power as Doe 3, County of Los Angeles (“County”) as Doe 4, and State of California (“State”) as Doe 5.

On February 14, 2024, City of Los Angeles and City of Los Angeles acting by and through the Los Angeles Department of Water and Power (collectively “City”) filed an answer and cross-complaint against Okkes, Bahamam, and Roes 1 through 10.

On February 29, 2024, Plaintiffs amended the complaint to name Uber Technologies, Inc. (“Uber”) as Doe 7, Rasier, LLC (“Rasier”) as Doe 7, and Rasier-CA, LLC (“Rasier-CA”) as Doe 8.  On the same day, Plaintiffs also filed a First Amended Complaint (“FAC”).

On April 10, 2024, City filed an answer to the FAC.

On May 6, 2024, Bahamam filed an answer to the FAC and an answer to City’s cross-complaint.  Bahamam also filed a cross-complaint against City, County, and Roes 1 through 25.

On May 24, 2024, Uber, Rasier, and Rasier-CA, each filed an answer to the FAC.

On May 29, 2024, City filed its answer to Bahamam’s cross-complaint.

On June 18, 2024, State filed an answer to the FAC.

On July 29, 2024, Okkes filed this motion to quash service of summons and complaint. On August 22, Plaintiffs filed an opposition to the motion and objections to some of the evidence submitted by Okkes. On August 28, Okkes filed a reply and a response to Plaintiffs’ objections.

LEGAL STANDARD 

Code of Civil Procedure section 415.10 provides the requirements of personal service of summons and the complaint as follows:

“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.  The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.”

(Code Civ. Proc., § 415.10.)

Code of Civil Procedure section 415.20 governs substituted service.  Subdivision (a) applies to substituted service at an office or usual mailing address.  Subdivision (b) applies to substituted service at a person’s residence and provides, in part:

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served … 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).)

“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.) Although the filing of a proof of service by a registered process server creates a rebuttable presumption that service was proper (see Evid. Code § 647), that presumption may be impeached by contrary evidence submitted by a defendant. (See, e.g., Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941 n.6.) 

In ruling on a motion to quash service of summons, the trial judge acts as the finder of fact and can resolve any conflicts in the evidence.  (Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1356.)

If service of summons is not properly and validly effectuated by one or more of the approved methods, California courts lack personal jurisdiction over the defendants, and any judicial actions taken without such service violates principles of fundamental due process and is therefore void. (Cnty. of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1231.)

OBJECTIONS TO EVIDENCE

Plaintiffs assert four objections to the declaration of Mr. Aslan.

The fourth objection, to the sentence beginning, “By the time that they left the papers,” is SUSTAINED, as the statement lacks foundation in personal knowledge.

The other objections are OVERRULED.

DISCUSSION 

The proof of service filed with the Court (on March 27, 2023) states that Defendant Okkes was served with the summons and complaint by substituted service at Okkes’s residence at 1246 North Farmosa [Formosa] Avenue by (1) delivering a copy to “Nasim N. Roomate” at that address on March 22, 2023 and (2) mailing a copy the next day, March 23, to Okkes at that same address.  The proof of service and declaration of due diligence are signed by Robert Arceo, a registered process server.

Okkes moves to quash service of the summons.  In the moving papers, Okkes makes one argument: that the evidence shows that he had moved out of the residence at 1246 North Formosa prior to service.  (Motion, at pp. 5-6.)  The only evidence that Okkes presents is a declaration from his roommate, Mr. Nazim Aslan.  Mr. Aslan states, in part:

“On March 22, 2023, I was residing at 1246 N. Formosa Av. In Los Angeles with my roommate Onen Okkes.  Mr. Okkes moved in February of 2023 and he moved out on March the 20th approximately.  [¶]  No one came to serve him and I did not speak to any process server.  I never accepted service on his behalf.  Someone came to my house and just left the papers at the door.”

(Aslan Decl.) 

In their opposition, Plaintiffs present a further declaration from the registered process server, Mr. Robert Arceo.  Mr. Arceo states that on March 22, 2023, he did speak to an adult male who identified himself as “Nasim” while attempting to serve Defendant Okkes at 1246 North Formosa.  (Arceo Decl., ¶ 5.)  “Nasim” confirmed that Defendant Okkes resided at the address, that Defendant Okkes was not home, and that they were “roommates” and “confidants.”  (Id., ¶¶ 6-7.)  Mr. Arceo left the summons and complaint with “Nasim” and explained the contents of the documents to him.  (Id., ¶ 8.)

Where, as here, there is a conflict in the evidence on a motion to quash service of summons, the trial court acts as the finder of fact.

The Court has considered the evidence in the record submitted by each side.  The Court finds that declaration of Mr. Arceo to be credible and finds the declaration of Mr. Aslan to be not credible.  Among other things, Mr. Aslan contradicts himself, stating in one sentence that he and Defendant Okkes were roommates as of March 22, 2023, and then in the very next sentence stating that Defendant Okkes had moved out on “approximately” March 20.  Moreover, Mr. Aslan denies having any conversation at all with the process server – which raises the question of how Mr. Arceo, the process server, knew what Mr. Aslan’s first name was.

Moreover, and independently, the Court notes that Defendant Okkes does not present his own declaration, under oath, stating when he moved out of the residence he shared with Mr. Aslan.  (Evid. Code, § 412.)   

Accordingly, the Court credits and accepts the declaration of Mr. Arceo.  The Court does not credit the statement in Mr. Aslan’s declaration that Defendant Okkes had moved out of the residence at 1246 North Formosa on “approximately” March 20, 2023.  As a result, the Court rejects the argument of Defendant Okkes that the substitute service was invalid because he was no longer residing at 1246 North Formosa at the time of service.

Finally, the Court notes that Defendant Okkes raises a new argument for the first time on reply that there was not sufficient diligence to support valid substitute service.  As this argument was not raised in the moving papers, the Court deems it as waived.

For the reasons set forth above, the motion is denied.

CONCLUSION

The Court DENIES Specially Appearing Defendant Onen Okkes’s motion to quash service of the summons.

Plaintiffs are ordered to give notice.