EVOCON ENGINEERING, INC., A CALIFORNIA CORPORATION VS MASON PARI, ET AL.

Tentative Rulings

Case Number: 19STLC09521    Hearing Date: January 14, 2021    Dept: 25

HEARING DATE:   Thu., January 14, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME:  Evocon Engineering, Inc. v. Pari, et al. COMPL. FILED: 10-15-19

CASE NUMBER: 19STLC09521 DISC. C/O: 03-14-21

NOTICE:   OK MOTION C/O: 03-29-21

PROCEEDINGS:     MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendants Mason Pari, individually and as trustee, and Roya Pari, individually and as trustee

RESP. PARTY: Plaintiff Evocon Engineering, Inc.

MOTION TO QUASH SERVICE OF SUMMONS

(CCP § 418.10)

TENTATIVE RULING:

Defendants’ Motion to Quash Service of Summons is GRANTED. However, Defendants’ request for sanctions pursuant to Code of Civil Procedure section 128.5 is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on December 30, 2020 [   ] Late [   ] None

REPLY: Filed on January 5, 2021 [   ] Late [   ] None

ANALYSIS:

1. Background

On October 15, 2019, Plaintiff Evocon Engineering, Inc. (“Plaintiff”) filed an action for foreclosure of mechanic’s lien, breach of contract, and quantum meruit against Defendants Mason Pari (“Mason”) and Roya Pari (“Roya”), individually and as trustees of the Mason and Roya Pari 2004 Trust dated March 16, 2004 (collectively, “Defendants”).

On April 17, 2020, Defendants filed the instant Motion to Quash Service of Summons (the “Motion”). Plaintiff filed an Opposition on December 30, 2020, and Defendants filed a Reply on January 5, 2021.

1. Legal Standard

“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: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”  (Code Civ. Proc., § 418.10, subd. (a)(1), emphasis added.)  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20, subd. (a)(3).)

 (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption.  (See Yadegar, supra, 194 Cal.App.4th at 1428.)

III. Discussion

Plaintiff’s Motion is timely.

Plaintiff filed proofs of service purporting to show that Defendant Mason was personally served on March 20, 2020 at 428 S. Barranca St., West Covina, CA 91791 (the “West Covina Address”) (3/23/20 Proofs of Service.) The proofs of service also show Defendant Roya was substitute-served at the West Covina Address by leaving a copy of the Summons and Complaint with Defendant Mason that same day. (Id.) Cathy Jo Garcia, a registered process server, effectuated service. (Id.) Thus, the proofs of service are entitled to a rebuttable presumption of valid service pursuant to California Evidence Code section 647.

Defendants argue Defendant Mason was not properly personally served and thus service as to himself and on behalf of Defendant Roya was defective and must be quashed. (Mot., p. 6:25-28.) Defendants provide their declarations stating that Defendant Mason partially owns the property located at the West Covina Address, that they have never resided at the West Covina address, and that they have resided at 245 S. Canon Dr., Beverly Hills, CA 90212 (the “Beverly Hills Address”) since about the year 2000. (Mot., Roya Decl., ¶¶ 3, 4, 5.) They also state they don’t receive mail at the West Covina address. (Id.) The proofs of service describe the person served as a Middle Eastern male in his 70s, 5’7”, weighing 150 pounds with white hair. (3/23/20 Affidavit of Diligence.) However, Defendant Mason states that he is 62 years old, weighing 180 pounds with dark brown hair and a beard. (Id., Mason Decl., ¶ 4.)

In Opposition, Plaintiff argues personal service at the West Covina Address was proper because it is Defendants’ usual mailing address (Oppo., pp. 2:19-3:7.) Plaintiff provides a copy of the property detail report for the West Covina property, which is owned in part by Defendant Mason, noting the mailing address was 428 S. Barranca St., West Covina, CA 91791. (Id., Golding Decl., ¶¶ 3, 5, Exh. A, B.) However, this does not demonstrate that Defendants’ usual mailing address is the West Covina Address. In addition, the property is only owned by Defendant Mason, not Defendant Roya. Substitute service is permitted at a defendant’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a post office box. (Code Civ. Proc., § 415.20, subd. (b).) Although Plaintiff’s evidence demonstrates Defendant Roya was the former owner of the property located at the West Covina Address, she does not currently seem to have any interest in that property (See Oppo., Exhs A, B.) Plaintiff has not explained why this is a proper address to effectuate service on Defendant Roya. Thus, the Court finds the West Covina Address is not a proper address for service on Defendant Roya.

Plaintiff also provides the declaration of registered process server Garcia stating that on March 20, when she attempted service, she asked if the gentleman who answered the door at the West Covina Address was Defendant Mason. (Oppo., Garcia Decl., ¶ 6.) After confirming that he was, she laid the two sets of documents, one for each Defendant, on the floor rather than handing them directly due to COVID-19. (Id.) However, Defendants also provide the declaration of Behrooz Ahoubim, Defendant Mason’s brother-in-law. (Mot., Ahoubim Decl., ¶ 4.) He states that he and his family have been the sole residents of the property located at the West Covina Address since 1994, that he is 76-years old, is Middle-Eastern, 5’8” tall, weighs about 160 pounds, and has white hair. (Id. at ¶¶ 3-6.) He further states that on the morning of March 20, 2020, when a process server asked for Roya Pari, he stated she did not live there. (Id. at ¶ 7.) The process server asked if he knew Defendant Mason, and after stating he did, the process server dropped off a packet on the floor and left without saying anything else. (Id.) (Emphasis added.)

Based on the above, the Court finds Defendants presented sufficient evidence to demonstrate Defendant Mason was not personally served and that substitute service on Defendant Roya at the West Covina Address was ineffective. Thus, Defendant’s Motion is GRANTED.

As a final note, Defendants’ request for sanctions pursuant to Code of Civil Procedure section 128.5 is procedurally improper. A motion under Section 128.5 must be made separately from other motions and must provide a 21-day safe harbor to the offending party to withdraw or correct the challenged action or tactic. (Code Civ. Proc., § 128.5, subd. (f)(1)(A), (B).) As Defendants did not comply with these procedural requirements, the request for sanctions is DENIED.

1. Conclusion & Order

For the foregoing reasons, Defendants’ Motion to Quash Service of Summons is GRANTED. However, Defendants’ request for sanctions pursuant to Code of Civil Procedure section 128.5 is DENIED.

Moving party is ordered to give notice.