Judge: William A. Crowfoot, Case: 18STCV00258, Date: 2022-08-15 Tentative Ruling

Case Number: 18STCV00258    Hearing Date: August 15, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 10, 2018, plaintiff Merced Maldonado filed this action against defendants Barrett Wissman (“Barrett”) and Nina Wissman (“Nina”) aka Nina Kotova (erroneously sued as “Nina Kokob”) (collectively, “Defendants”).  On September 4, 2019, August 17, 2020, and December 6, 2021, the Court granted three other motions to quash service of summons filed by Defendants.  Now, the Court addresses their fourth motion to quash service of summons. 

Proofs of service of summons filed on July 8, 2022 reflect that Defendants were each served by substituted service on May 30, 2022 at 1:44 p.m. when a copy of the summons and complaint were left with Isabella Brunori, identified as a “Restaurant owner, authorized to accept documents” at a restaurant located at Piazza Luca Signorelli, 13, 52044 Cortona AR, Italy.  In the declaration of diligence, the process server, Flavia Pacelli, states that she is informed that Defendants “are part owners of this restaurant and this is [Defendants’] usual place of business.”  Ms. Pacelli also states that she spoke with Ms. Brunori.  Ms. Brunori told her that Defendants arrive at the restaurant frequently, and that she is authorized to accept service on their behalf. 

Defendants argue that, even though they know Ms. Brunori because they lived in Italy more than 10 years ago, they have eaten there once in the past ten years and do not own the restaurant.  (See generally, Barrett Wissman Decl. and Nina Wissman Decl.

When a defendant moves to quash service of summons, 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.)  Although filing a proof of service by a registered process server creates a rebuttable presumption that service was proper, this presumption only arises if the proof of service complies with the statutory requirements.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to . . . 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”]; but see Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)  Additionally, proof of service of summons may be impeached by evidence that contradicts it.  (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.) 

Here, Ms. Pacelli is not a registered California Process server.  Therefore, the presumption of proper service does not apply and Plaintiff has the burden to produce evidence showing that Defendants were properly served.  However, Plaintiff only relies on the declaration of Ms. Pacelli, which is insufficient because the information she is relaying about Defendants’ part ownership of the restaurant and their frequent visits is hearsay from Ms. Brunori.  Further, The rest of Plaintiff’s opposition rehashes arguments that were previously made in opposition to Defendants’ three motions to quash; these arguments were rejected by the Court. 

          Accordingly, Defendants’ motion to quash service of summons is GRANTED.  Defendants’ request for sanctions is DENIED because it was not mentioned in the notice of motion and is unsupported by statute.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.