Judge: Stuart M. Rice, Case: 23STCV01414, Date: 2023-11-13 Tentative Ruling

Case Number: 23STCV01414    Hearing Date: November 13, 2023    Dept: 1

Moving Party:             Specially Appearing Defendants CRS Management, Inc. and Aaron S. Yi

Responding Party:      Plaintiff Delmar Gordillo Vidal

Ruling:                        Motion denied as to CRS Management, Inc. and off calendar as to Aaron S. Yi.  The Court will set an OSC re: filing of proof of service on Mr. Yi. 

This is a wage-and-hour proposed class action.  Specially appearing defendants CRS Management, Inc. (CRS) and Aaron S. Yi (collectively, Defendants) move to quash service of summons pursuant to Code Civ. Proc. § 418.10 on the grounds that they were not properly served with the summons and complaint. 

“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.4^th 403, 413.) 

Plaintiffs have filed only a declaration from Plaintiff’s lawyer Jose Garay, Esq.  Although there is a proof of service on file dated October 30, 2023 stating that an opposition was served alongside the declaration, there is no indication that the opposition was filed with the Court and the Court has received none.  Nonetheless, the Court will consider the declaration. 

1.      Service on CRS Management, Inc.

Service on a corporation may be made by personal delivery to the corporation’s agent for service of process, or 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.”  (Code Civ. Proc. § 416.10(a), (b).)  Alternatively, in lieu of delivery to one of those people,

a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, 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 were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(Code Civ. Proc. § 415.20(a).)

CRS’s Statement of Information indicates that its business address is 942 W. Arrow Highway #6, Covina, California 91722.  (Garay Decl., Ex. 2.)  The proof of service of summons indicates that Plaintiff left the papers at CRS’s business address with someone named Gil Han and then mailed the papers to that address, care of Aaron S. Yi, who is also the agent for service of process.  (See Garay Decl., Ex. 3.)  This would tend to establish proper service on CRS.  In reply, CRS’s counsel contends (but Mr. Yi does not declare) that no one matching the description of Gil Han “is a manager” and that it is “unlikely that someone this young [25] could be presumed a manager of the establishment.”  Even if Mr. Yi had declared to the facts counsel recites, Code Civ. Proc. § 415.20(a) does not require that the person be presumed a manager, only that the person with whom the papers are left be “apparently in charge” of the premises and be at least 18 years of age and informed of the contents of the papers.  This does not create a dispute as to service, and the motion will be denied as to CRS.

2.      Service on Aaron S. Yi

No proof of service has been filed as to Mr. Yi in his individual capacity.  There was no declaration of diligence with respect to serving Mr. Yi in his individual capacity.  (See Code Civ. Proc. § 415.20(b).)  Since Plaintiff does not at this time assert that personal jurisdiction has been established over Mr. Yi, there is nothing to quash, and so the motion is off calendar as to Mr. Yi. 

That said, counsel are advised to meet and confer as to service on all parties and move this case forward.  Mr. Yi declares that he is personally present at CRS’s premises in this county, and there is no reason why the parties cannot stipulate to service on Mr. Yi.  The Court will set an Order to Show Cause with respect to service on Mr. Yi and other unserved defendants for December 13, 2023 at 10:30 a.m.

Conclusion

For the foregoing reasons, the motion is denied as to defendant CRS Management, Inc. and off calendar as to defendant Aaron S. Yi.  CRS is to file a Notice of Appearance within 15 days of this order.  (Code. Civ. Proc. § 418.10(b).)  Counsel for Plaintiff and Mr. Yi are ordered to meet and confer to see if they can agree on service, and if not, Plaintiff should proceed to serve Mr. Yi as provided under the law. As this case was filed ten months ago, the Court sets an order to show cause why Plaintiff should not be sanctioned for failure to file proof of service on Mr. Yi and other unserved defendants for December 13, 2023 at 10:30 a.m. The Initial Status Conference will also be continued to this date and time.  The OSC will be discharged if Plaintiff files a proof of service on Mr. Yi before that date.  Counsel for CRS to give notice.