Judge: Yolanda Orozco, Case: 22STCV24448, Date: 2022-11-14 Tentative Ruling
Case Number: 22STCV24448 Hearing Date: November 14, 2022 Dept: 31
MOTION TO QUASH SERVICE OF SUMMONS IS GRANTED
On July 28, 2022, Plaintiff Kerem Ozmen filed a Complaint against Defendant Robert Micha “Micah” McDonald for:
1)
Breach
of Written Contract
2)
Non-Compliance
with and wrongful retention of security deposit in violation of Civil Code §
1950.5;
3) Conversion.
On October 21, 2022, Defendant filed a Motion to Quash Service of Summons and Complaint Due to Defective Service.
On November 01,
2022, Plaintiff filed opposing papers. No reply has been filed.
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. . ..”. (C.C.P. § 418.10(a).) A court lacks
jurisdiction over a party if there has not been proper service of process. (See
Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)¿¿
¿
“When a motion to quash is properly brought, the burden of
proof is placed upon the plaintiff to establish the facts of jurisdiction by a
preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007)
148 Cal.App.4th 556, 568.)
Request for Judicial Notice
The Court may take judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evid. Code § 452(b).) The Court may take judicial notice of records of any court of record of the United States. (Id. at § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
Plaintiff requests Judicial Notice of the following:
1) Numerous digital publications that support the narrative that Defendant is an owner of the Mezcal bar in Atwater Village known as “Sagrado Mezcaleria.” Below are links to said digital publications:
a)
https://www.marieclaire.com/culture/tv-shows/who-is-micah-selling-sunset/
b)
https://www.usmagazine.com/celebrity-news/pictures/emma-hernans-selling-sunsetdate-micah-mcdonald-5-things-to-know/2-he-opened-a-mezcal-bar/
c)
https://decider.com/2022/04/25/selling-sunset-micah-mcdonald-emma-hernan/
d)
https://thetab.com/uk/2022/04/25/micah-selling-sunset-emma-248022
e) https://www.elitedaily.com/entertainment/who-is-micah-selling-sunset-emma-loveinterest
2) The business of the Mezcal bar in Atwater Village known as “Sagrado Mezcaleria” holds a Type 47 Liquor License, and it is operated by Sagrado Entertainment, LLC at 3216 Glendale Blvd, Los Angeles, CA 90039. Attached hereto as Exhibit A is a true and correct copy of the “License Details” page provided by the California Department of Alcoholic Beverage Control evidencing these facts.
Judicial Notice of request number one relating to the digital publications is DENIED since the truth of the contents of the articles is disputed and the publications have not been authenticated. (See Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882 [“we are not persuaded that the industry report, the industry's model code, or the magazine article are properly judicially noticeable under either Evidence Code section 452, subdivision (g) or Evidence Code section 452, subdivision (h).”)
Judicial Notice as to request
number two is GRANTED pursuant to Evidence Code section 452 subdivision (b).
DISCUSSION
Plaintiff submitted a Proof of Service by a registered California process server who declared that substitute service was effectuated on Defendant on Thursday, September 01, 2022, at 7:43 pm by leaving the documents with Michael Owens, Manager at 3216 Glendale Blvd., Los Angeles, CA 90030. The process server attached a Declaration of Diligence and a Declaration of Mailing to the address stated above.
Defendant asserts that he did not have a usual place of business located at 3216 Glendale Blvd., and that he is not listed as an owner of the business located at 3216 Glendale Blvd per the business’s filings with the California Secretary of State. (McDonald Decl. ¶¶ 6, 12, Ex. 2.) Defendant also asserts that Michael Owns is not authorized to accept a Summons and Complaint on Defendant’s behalf.
Defendant attaches a declaration from his counsel asserting that defense counsel tried to meet and confer with Plaintiff’s counsel to cancel the Proof of Service. (Landver Decl. ¶ 2, Attachment A.) Defendant asserts he has not received the Summons and Complaint, or any documents in the mail from Plaintiff. (McDonald Decl. ¶ 14-15.) Plaintiff’s counsel asserts that he can present various video clips showing statements by Defendant he is opening a Mezcal kitchen and bar and is the owner the bar Sagrado Mezcaleria located at 3216 Glendale Blvd. (Tabolsky Decl. ¶ ¶ 4-8, Ex. A.)
Under Code of Civil Procedure section 415.20, substitute service is permitted only after the plaintiff is not able to personally serve the defendant after reasonable diligence. (See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.) Here, the process server states that a previous diligent attempt was made to serve the Defendant on August 31, 2022, at 8:12 pm at 3216 Glendale Blvd., and the manager informed the process served that the “subject is not in and rarely comes in. He is an Investor in the business. He said he was able to accept the documents on behalf of subject.” (See Proof of Service filed 10/17/22.)
Therefore, it is disputed that 3216 Glendale Blvd is Defendant’s “usual place of business” because the process server was informed that Defendant was an investor and that he did not frequent the establishment. (Code of Civ. Proc. § 415.20, subd. (b).) Moreover, there are no facts to show Plaintiff tried to serve Defendant at a different address. “Ordinarily, two or three attempts at personal service at a proper place and with correct pleadings should fully satisfy the requirement of reasonable diligence and allow substituted service to be made. (Kremerman v. White (2021) 71 Cal.App.5th 358, 373 [italics added].)
Since Plaintiff cannot establish that 3216 Glendale Blvd. is Defendant’s “usual place of business,” the Motion is GRANTED.
Conclusion
Defendant’s Motion to Quash the Service of Summons and Complaint is GRANTED.
Moving party to give notice.