Judge: Upinder S. Kalra, Case: 23STCV03998, Date: 2023-09-05 Tentative Ruling

Case Number: 23STCV03998    Hearing Date: February 21, 2024    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 21, 2024                                          

CASE NAME:           Steve Hea Chung v. Danny Joseph Chahayed, et al.

CASE NO.:                23STCV03998

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant Danny Joseph Chahayed

RESPONDING PARTY(S): None as of February 15, 2024.

REQUESTED RELIEF:

1.      An order to quash the service of summons.

TENTATIVE RULING:

1.      Motion to Quash Service of Summons is GRANTED.  

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On February 2, 2023, Plaintiff Steven Hea Chung (“Plaintiff”) filed a complaint against Defendants Danny Joseph Chahayed and Busy Man LA Ave., LLC (“Defendants.”) The complaint alleged three causes of action: (1) Contractual Fraud, (2) Breach of Contract – Purchasing Agreement, and (3) Breach of Contract – Lease Termination Agreement. The complaint alleges that Plaintiff and Defendant entered a purchase agreement, which was through an Escrow that indicated the initial deposit was to be $5,000 of the $75,000 selling price. However, Plaintiff alleges that the escrow was intentionally not closed on time.

On March 30, 2023, Defendant Busy Man, LA Ave, LLC, filed an Answer.

On September 5, 2023, the court GRANTED Defendant Chahayed’s unopposed Motion to Quash Service of Summons.

On September 11, 2023, Plaintiff filed Proof of Personal Service as to Defendant Chahayed.

On September 29, 2023, Defendant Chahayed filed the instant Motion to Quash Service of Summons and Complaint. Plaintiff’s opposition was due on or before February 6, 2024. On February 7, 2024, Defendant Chahayed filed a Notice of Non-Opposition. As of February 15, 2024, Plaintiff has not filed an opposition.

LEGAL STANDARD:

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .”  (Code Civ. Proc., § 418.10(a).)  “[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.)  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.)  “A court lacks jurisdiction over a party if there has not been proper service of process.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

ANALYSIS:

Defendant Danny Joseph Chahayed moves to quash the service of summons on the grounds that the Court lacks jurisdiction over him as he was not properly served.

Under CCP § 418.10(a)(1), a defendant may move to quash the service of summons on the grounds that the Court lacks jurisdiction over him or her. Defendant argues that Plaintiff failed to effect proper service of process. Under CCP § 415.10, 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 summons in this manner is deemed complete at the time of such delivery.”

Here, the Proof of Service indicates personal service of Defendant Chahayed via Areg A. Sarkissian on September 8, 2023, at 2:10 p.m. at 6345 Balboa Blvd., #114, Encino, California 91316. Defendant contends this is invalid for several reasons. First, Plaintiff did not personally serve Defendant Chahayed and Mr. Sarkissian was out of the country on the purported service date. Second, the service attempt did not occur at Defendant Chahayed’s workplace or home address. Third, there was no subsequent mailing of the documents. Fourth, there was no declaration of diligence. Fifth, there was no service via first class mail.

“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.) “The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) “Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

Here, the Court finds that Plaintiff’s proof of service creates a rebuttable presumption that service was proper. However, as Defendant argues, service was not sufficiently effected. As the declarations in support indicate, Defendant Chahayed was not personally served, his attorney had not consented to accept service on his behalf, and his attorney was out of the country when the purported personal service on him occurred. (Chahayed Decl. ¶¶ 4, 5, 6, 7; Sarkissian Decl. ¶¶ 4, 5, 6, 7, 8; Kilinyan Decl. ¶¶ 4, 5, 6.) Additionally, the Proof of Service does not comply with the requirements for substituted service under CCP § 415.20. There is no indication of subsequent mailing and Mr. Sarkissian’s office is hardly the “place of business, or usual mailing address” for Defendant Chahayed.[1] Thus, Defendant Chahayed was not personally served and therefore, the court lacks jurisdiction over him.

Accordingly, the court GRANTS Defendant Chahayed’s Motion to Quash Service of Summons.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Quash Service of Summons is GRANTED. 

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             February 21, 2024                   __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court