SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
| KIMBERLY FAY, et al.,
Plaintiffs, vs.
GLENN SOLOMON, et al.,
Defendants. |
CASE NO.: 19STCV24611
[TENTATIVE] ORDER RE: MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT
Date: February 3, 2020 Time: 8:30 a.m. Dept. 56
|
MOVING PARTIES: Defendants Glenn Solomon; Matthew Solomon; and Marion Solomon
RESPONDING PARTIES: Plaintiffs Kimberly Fay; James Vitale; Tammy Solz; Jeffrey K. Schmidt; Jamie Rosenthal-Boyer; and Theodore Boyer
The Court has considered the moving, opposition, and reply papers.
BACKGROUND
Plaintiffs’ complaint arises from their alleged tenancy and wrongful eviction from a property located at 336 North Ogden Drive, Los Angeles, CA 90036 (the “Subject Property”). Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) violation of the Unruh Civil Rights Act; (2) violation of California Civil code, Section 789.3; (3) forcible entry and detainer; (4) wrongful eviction; (5) violation of Los Angeles Rent Stabilization Ordinance; and (6) conversion.
Procedural History
Plaintiffs filed their complaint on July 15, 2019. According to the proof of service filed with the Court, Matthew Solomon was served with a copy of the summons and complaint via substitute service on August 20, 2019 at 2232 Bagley Avenue, Los Angeles, CA 90034 (“2232 Bagley”). The proof of service indicates that the summons and complaint were left with “JANE DOE” who was a co-occupant. According to the proof of service filed with the Court, Marion Solomon was served with a copy of the summons and complaint via substitute service on August 20, 2019 at 2232 Bagley Avenue. The proof of service indicates that the summons and complaint were left with “JANE DOE” who was a co-occupant. According to the proof of service filed with the Court, Glenn Solomon was served with a copy of the summons and complaint via substitute service on August 20, 2019 at 2232 Bagley Avenue. The proof of service indicates that the summons and complaint were left with “JANE DOE” who was a co-occupant.
Defendants filed a motion to quash service of the summons and complaint with respect to Matthew Solomon, Marion Solomon, and Glenn Solomon. Defendants assert that: (1) the purported substitute service on Defendants failed to comply with statutory requirements; and (2) Plaintiffs have failed to properly serve any of the Defendants pursuant to California Code of Civil Procedure, Section 415.20. Defendants contend that the claimed substituted service should be quashed because: (1) Matthew and Marion Solomon do not reside at 2232 Bagley; and (2) substituted service of Glenn Solomon was not effectuated because the documents were simply left on the porch outside near the front door of 2232 Bagley.
Plaintiffs oppose Defendants’ motion on the grounds that: (1) a process server’s declaration of service is presumed correct; (2) a defendant cannot defeat service by rendering service of process virtually impossible; and (3) a summons may be served at a defendant’s usual mailing address.
DISCUSSION
California Code of Civil Procedure, Section 418.10(a)(1) allows a defendant to file and serve a notice of motion “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “[S]ervice of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.” (Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 741.) “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416.) “[C]ompliance with statutory procedures for service of process is essential to establish personal jurisdiction.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “The return of a registered process server establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Fernandes v. Singh (2017) 16 Cal.App.4th 932, 940.) “[A] defendant will not be permitted to defeat service by rendering physical service impossible.” (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013.) “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.) In connection with a motion to quash, a plaintiff has the burden to present evidence that service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1442-1443.)
Issue No.1: Substitute Service
California Code of Civil Procedure, Section 415.20(b) says that “[i]f 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 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 . . . at least 18 years of age, who shall be informed of the contents thereof, and thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person served at the place where a copy of the summons and complaint were left.”
California Code of Civil Procedure, Section 415.20(b) further says that “[s]ervice of a summons in this manner is deemed complete on the 10th day after the mailing.” “Statutes governing substitute service shall be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “Personal delivery must be attempted in all cases” where substitute service is utilized. (Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472, 1477.) “It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served.” (Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315.) “[A]n individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint cannot with reasonable diligence be personally delivered to the individual defendant.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) A court is not “required to accept . . . self-serving evidence contradicting the process server’s declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) A process server is “not required to exhaust all avenues” with respect to obtaining a current address. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 545.) “Service must be made upon a person whose relationship with the person to be served makes it more likely than not that they will deliver process to the named party.” (Id. at 546.)
Evidence in Support of Defendants’ Motion
Marion Solomon declares that: (1) he has never been personally served with the summons and complaint in this case (Solomon Decl. at ¶ 2); (2) 2232 Bagley is not and has never been his dwelling house, usual place of abode, usual place of business or usual mailing address, and he has never lived at this address (Id. at ¶ 3); (3) he was not at 2232 Bagley at any time on August 20, 2019 (Id. at ¶ 4); and (4) he has never received in the mail the summons and complaint, has never seen the summons or complaint in this case, and only heard there was a lawsuit in this case through Glenn Solomon. (Id. at ¶ 5.)
Matthew Solomon declares that: (1) he has never been personally served with the summons and complaint in this case (Solomon Decl. at ¶ 2); (2) 2232 Bagley is not and has never been his dwelling house, usual place of abode, usual place of business or usual mailing address, and he has never lived at this address (Id. at ¶ 3); (3) he was not at 2232 Bagley at any time on August 20, 2019 (Id. at ¶ 4); and (4) he has never received in the mail the summons and complaint, has never seen the summons or complaint in this case, and only heard there was a lawsuit in this case through Glenn Solomon. (Id. at ¶ 5.)
Glenn Solomon declares that: (1) he has never been personally served with the summons and complaint in this case (Solomon Decl. at ¶ 2); (2) he has never been approached or contacted by a process server in this case (Id.); (3) he has been informed by Linda Solomon that on August 20, 2019, she retrieved documents that were left on the porch outside near the front door of 2232 Bagley (Id. at ¶ 3); (4) there was no one on the porch at the time she retrieved the documents, she was not personally served by anyone with the documents, and was not face-to-face with anyone that day serving these documents (Id.); (5) the first he heard about this lawsuit was from Linda Solomon telling him that she had retrieved these documents (Id.); (6) he was not at 2232 Bagley at any time on August 20, 2019 (Id. at ¶ 4); and (7) he has never received in the mail the summons and complaint. (Id. at ¶ 5.)
Linda Solomon declares that: (1) she resides at 2232 Bagley (Solomon Decl. at ¶ 2); (2) on August 20, 2019, she retrieved documents that were left on the porch outside near the front door of 2232 Bagley (Id. at ¶ 3); and (3) there was no one on the porch at the time she retrieved the documents, she was not personally served by anyone with the documents, and she was not face-to-face with anyone that day serving these documents. (Id.)
Plaintiffs’ Evidence in Opposition to Defendants’ Motion
Plaintiffs present the declaration of their counsel, Frances M. Campbell (“Campbell”) who declares that: (1) on or around October 10, 2019, his office was served with a subpoena to the Los Angeles Housing Department seeking documents with respect to the following addresses—336 North Ogden Drive, 336 ½ North Ogden Drive, 338 North Ogden Drive, and 338 ½ North Ogden Drive (Campbell Decl. at ¶ 3); (2) the subpoena was issued by attorney Eurus Cady as attorney for Defendants Glenn Solomon and Matthew Solomon (Id.); (3) his office ordered and received copies of the subpoenaed documents from the deposition office and it lists the mailing address of Glenn, Matthew, and Marion Solomon as 2232 Bagley (Id. at ¶ 4; Id., Exhibit C at page 6); and (4) prior to attempting service of Matthew and Marion Solomon at 2232 Bagley, in July 2019, his office attempted to serve them at 7562 Stewart in Los Angeles, an address he found by conducting a search of recorded real estate documents (Id. at ¶ 5 and Exhibit D.)
Analysis
As indicated above, the proofs of service with respect Matthew, Glenn, and Marion Solomon all indicate that they were each served via substitute service on August 20, 2019. (Crossin Decl. at Exhibit A.) The Court finds that substitute service with respect to Matthew, Glenn, and Marion Solomon at 2232 Bagley was proper as Plaintiffs have presented a connection with respect to Matthew, Glenn, and Marion Solomon and the 2232 Bagley address as required by Corcoran. The subpoenaed records provided by the Los Angeles Housing Department clearly indicate that all three Defendants’ mailing address is 2232 Bagley. (Campbell Decl., Exhibit C at page 6.) Moreover, the declaration of due diligence provided by the process server with respect to each Defendant indicates that each Defendant’s residence address is 2232 Bagley. (Campbell Decl. at Exhibit A.)
This case is unlike Corcoran where the court held that there was no indication in the record to tie defendant to the address where he was allegedly served and as such service was improper. Here, however, the subpoenaed documents indicate that all three Defendants have a connection to 2232 Bagley as it is their mailing address; moreover, the process server’s declaration indicates that each of the three Defendants resides at 2232 Bagley. Additionally, the Court is not required to accept the self-serving declarations provided by Defendants with respect to their residency and lack of connection to 2232 Bagley under Zara. While Defendants contend that with respect to Glenn Solomon service was improper because the documents were dropped on the porch, the process server’s declaration of due diligence and the accompanying proof of service does not indicate such fact. (Campbell Decl. at Exhibit A.) Moreover, each of the three Defendants received actual notice of this lawsuit per their statements in their respective declarations.
Therefore, the Court DENIES Defendants’ motion to quash service of the summons and complaint in its entirety.
Moving parties are ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 3rd day of February 2020