Judge: Walter P. Schwarm, Case: 30-2022-01298372, Date: 2023-08-01 Tentative Ruling
Specially Appearing Defendants’ (M&J Restaurant Group (M&J), T&J Fresh Co (T&J), Modu Management (Modu), and Kopan Ramen (Ramen)) Motion to Quash Service of Summons for Lack of Jurisdiction (Motion), filed on 3-13-23 under ROA No. 27, is DENIED.
The Motion states, “Specially Appearing Defendants, M&J Restaurant group, T&J Fresh Co, Modu Management, and Kopan Ramen were never personally or otherwise served with the summons and complaint.” (Motion; 3:6-8.) The Motion also states, “Here, Specially Appearing Defendants have alleged that Defendants were not personally served at any time of the purported service after which the burden then shifts to Plaintiff to show that the purported service of the summons and complaint on Specially Appearing Defendants is valid.” (Motion; 6:4-8.)
Plaintiff’s (Tonia Gadson) Opposition to Specially Appearing Defendants’ Motion to Strike and Motion to Quash Service of Summons (Opposition), filed on 7-7-23 under ROA No. 46, responds, “Defendants’ sole grounds for the motion to quash is that Mr. Lee was not personally handed a copy of the Summons and Complaint by the process server. The Proofs of Service filed in this matter under penalty of perjury clearly show that substitute service was accomplished as well as mail service. Plaintiffs have clearly met their burden here.” (Opposition; 4:26-5:1.)
Code of Civil Procedure section 418.10 states in part, “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, 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. [¶] (2) To stay or dismiss the action on the ground of inconvenient forum. [¶] (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”
“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 effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; Footnote 35 omitted.) Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163, provides, “As explained above, plaintiff bore the burden of showing facts requisite to a valid service. [Citations.] The record establishes that plaintiff did not discharge her burden. The filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration ‘complies with the statutory requirements regarding such proofs.’ [Citation.]”
Evidence Code section 647 states, “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of 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.”
Code of Civil Procedure section 416.10 states in part, “A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: [¶] (a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable). [¶] (b) 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 of Civil Procedure section 415.20 states in part, “(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, 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. [¶] (b) 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 of Civil Procedure section 415.95, subdivision (a), states, “(a) A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, 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 was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”
M&J and T&J:
The Proof of Service filed on 1-23-23 under ROA No. 11, reflects that Plaintiff accomplished service of the summons and complaint on M&J by substituted service on 1-12-23 at 4405 Fruitland Avenue Vernon, CA 90058. The Proof of Service indicates that substituted service was on Young Jun Lee as Agent for Service of Process. (ROA No. 11.) The declaration of mailing shows that Plaintiff mailed the summons and complaint to M&J at 4405 Fruitland Avenue Vernon, CA 90058 on 1-23-23. (ROA No. 11.) Under Code of Civil Procedure section 415.20, subdivision (a), service was completed on the tenth day after 1-23-23. The declaration from Specially Appearing Defendant’s attorney states that the attorney works “. . . out of the address located at 4405 Fruitland Ave., Vernon, CA 90058 but . . . was never served with the documents. . . .” (Lee Decl., ¶ 3.)
The Proof of Service filed on 1-23-23 under ROA No. 13, reflects that Plaintiff accomplished service of the summons and complaint on T&J by substituted service on 1-12-23 at 4405 Fruitland Avenue Vernon, CA 90058. The Proof of Service indicates that substituted service was on Byung Ha Chang as Agent for Service of Process. (ROA No. 13.) The declaration of mailing shows that Plaintiff mailed the summons and complaint to T&J at 4405 Fruitland Avenue Vernon, CA 90058 on 1-23-23. (ROA No. 13.) Under Code of Civil Procedure section 415.20, subdivision (a), service was completed on the tenth day after 1-23-23. The declaration from Specially Appearing Defendant’s attorney states that the attorney works “. . . out of the address located at 4405 Fruitland Ave., Vernon, CA 90058 but . . . was never served with the documents. . . .” (Lee Decl., ¶ 3.)
Based on the Proofs of Service filed under ROA Nos. 11 and 13,
the court finds that Plaintiff has met Plaintiff’s burden of showing
effective service on M&J and T&J.
M&J’s and T&J’s evidence is insufficient to demonstrate that service
was improper. Therefore, the court DENIES the Motion as brought by
M&J and T&J.
Modu:
The Proof of Service filed on 1-23-23 under ROA No. 15, reflects that Plaintiff accomplished service of the summons and complaint on Modu by substituted service on 1-12-23 at 4405 Fruitland Avenue Vernon, CA 90058. The Proof of Service indicates that substituted service was on Young Jun Lee as Agent for Service of Process. (ROA No. 15.) The declaration of mailing shows that Plaintiff mailed the summons and complaint to Modu at 4405 Fruitland Avenue Vernon, CA 90058 on 1-23-23. (ROA No. 15.) Under Code of Civil Procedure section 415.20, subdivision (a), service was completed on the tenth day after 1-23-23. The declaration from Specially Appearing Defendant’s attorney states that the attorney works “. . . out of the address located at 4405 Fruitland Ave., Vernon, CA 90058 but . . . was never served with the documents. . . .” (Lee Decl., ¶ 3.)
There is possibly a slight defect in service on Modu because paragraph 5(b)(4) could be construed as accomplishing service pursuant to Code of Civil Procedure section 415.20. (ROA No. 15.) The Complaint, filed on 12-21-22 under ROA No. 2, indicates that Modu is “a business organization, form unknown.” Code of Civil Procedure section 415.95 applies to business organizations where the form is unknown. Since Code of Civil Procedure section 415.95 allows for substituted service similar to Code of Civil Procedure section 415.20, the court finds that Plaintiff complied with Code of Civil Procedure section 415.95.
Based on the Proof of Service filed under ROA No. 15, the court
finds that Plaintiff has met Plaintiff’s burden of showing effective service
on Modu.
Modu’s evidence is insufficient to demonstrate that service was improper.
Therefore, the court DENIES the Motion as brought by Modu.
Ramen:
The Proof of Service filed on 1-23-23 under ROA No. 9, reflects that Plaintiff accomplished service of the summons and complaint on Modu by substituted service on 1-12-23 at 4405 Fruitland Avenue Vernon, CA 90058. The Proof of Service indicates that substituted service was on Byung Ha Chang as Agent for Service of Process. (ROA No. 9.) The declaration of mailing shows that Plaintiff mailed the summons and complaint to Ramen at 4405 Fruitland Avenue Vernon, CA 90058 on 1-23-23. (ROA No. 9.) Under Code of Civil Procedure section 415.20, subdivision (a), service was completed on the tenth day after 1-23-23. The declaration from Specially Appearing Defendant’s attorney states that the attorney works “. . . out of the address located at 4405 Fruitland Ave., Vernon, CA 90058 but . . . was never served with the documents. . . .” (Lee Decl., ¶ 3.)
There is possibly a slight defect in service on Ramen because paragraph 5(b)(4) could be construed as accomplishing service pursuant to Code of Civil Procedure section 415.20. (ROA No. 9.) The Complaint, filed on 12-21-22 under ROA No. 2, indicates that Ramen is “a business organization, form unknown.” Code of Civil Procedure section 415.95 applies to business organizations where the form is unknown. Since Code of Civil Procedure section 415.95 allows for substituted service similar to Code of Civil Procedure section 415.20, the court finds that Plaintiff complied with Code of Civil Procedure section 415.95.
Based on the Proof of Service filed under ROA No. 9, the court
finds that Plaintiff has met Plaintiff’s burden of showing effective service
on Ramen.
Ramen’s evidence is insufficient to demonstrate that service was improper.
Therefore, the court DENIES the Motion as brought by Ramen.
Based on the above, the court DENIES Specially Appearing Defendants’ (M&J Restaurant Group (M&J), T&J Fresh Co (T&J), Modu Management (Modu), and Kopan Ramen (Ramen)) Motion to Quash Service of Summons for Lack of Jurisdiction filed on 3-13-23 under ROA No. 27. The court ORDERS Specially Appearing Defendants to file a responsive pleading no later than 30 days after the date of service of the notice of the court’s ruling.
Plaintiff is to give notice.