BARBARA BENSON, DECEASED, BY AND THROUGH HER SUCCESSOR IN INTEREST DANIEL BENSON, ET AL. VS BRIUS, LLC, ET AL.

Tentative Rulings

Case Number: *******6510 Hearing Date: March 13, 2023 Dept: 8

Tentative Ruling

HEARING DATE: March 13, 2023

CASE NUMBER: 22TRCV06510

CASE NAME: Barbara Benson, Deceased, by and through her successor in interest Daniel Benson; and Daniel Benson, individually v. Brius LLC, et al.

MOVING PARTY: Specially appearing Defendant, Shlomo Rechnitz

RESPONDING PARTY: Plaintiff, Barbara Benson, Deceased, by and through her successor in interest Daniel Benson; and Daniel Benson, individually

TRIAL DATE: August 22, 2023

MOTION: (1) Motion to Quash

Tentative Rulings: (1) Grant, but if defense counsel will not agree to accept service on Mr. Rechnitz’ behalf, the Court will consider a motion to serve by publication in light of plaintiff’s reasonably diligent efforts to effect service at multiple addresses they found for him

I. BACKGROUND

A. Factual

On February 22, 2022, Plaintiff Barbara Benson, Deceased, by and through her successor in interest Daniel Benson; and Daniel Benson, individually (“Plaintiff”) filed a complaint against Defendants, Bruis LLC; Bruis Management Co.; Driftwood Healthcare & Wellness Center, LC; Citrus GP; Boardwalk West Financial services, LLC; Driftwood-Let, LLC; SYTR Real Estate Holdings, LLC; Rockport Healthcare Support Service, LLC; Rockport Administrative Services, LLC; SOL Healthcare LLC; Rechnitz Core GP; and DOES 1 through 150, inclusive. The Complaint alleged causes of action for: (1) Negligence/Willful Misconduct; (2) Elder Abuse and Neglect; (3) Violation of Patients’ Bill of Rights; and (4) Wrongful Death.

Specially Appearing Defendant, Shlomo Rechnitz now files a Motion to Quash Service of Summons and Complaint claiming that he was not served with the summons and complaint

B. Procedural

On August 1, 2022, Specially Appearing Defendant, Shlomo Rechnitz (“Rechnitz”) filed this Motion to Quash service of summons for improper service of process. On February 27, 2023, Plaintiff filed an opposition to Defendant’s Motion to Quash Service of Summons

II. ANALYSIS

A. Legal Standard

“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 an effective service.’” (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.)

B. Discussion

Defendant Rechnitz asserts that Plaintiff’s proof of service and complaint purports that he was served by substituted service on July 7, 2022, by serving a “Jane Doe, Person in Charge” at 7223 Beverly Blvd., Suite 205, Los Angeles, California, and thereafter mailed the summons, complaint, and various other documents to the same address on July 8, 2022. However, Defendant Rechnitz argues that for substituted service on an individual defendant to be valid, the process served must have first made a good faith effort at personal service on the individual defendant and provide a declaration of reasonable diligence pursuant to Code of Civil Procedure 415.20(b). Additionally, Defendant Rechnitz notes in his declaration that the address listed on the proof, 7223 Beverly Blvd., Suite 205, Los Angeles, California is not his home or workplace. (Rechnitz Decl., 3-4.)

In Plaintiff’s opposition, Plaintiff argues that Defendant Rechnitz was initially served via substitute service on May 9, 2022 at the address of co-defendant Driftwood Healthcare & Wellness Center, LLC, the skilled nursing facility Rechnitz is alleged to own and operate. (Declaration of Joseph F. Fighera, 2; Exhibit A, Proof of Service; Complaint, 19-24.) Plaintiffs further noted that in light of the initial arguments raised by defense counsel in relation to the initial service upon Defendant Rechnitz and in hopes of avoiding unnecessary law and motion, Plaintiff elected to effectuate service on Defendant Rechnitz again, and in doing so, attempted service at his usual place of business, 7223 Beverly Boulevard, Suite 205, Los Angeles, California 90036. (Fighera Decl., 4.) Plaintiff further notes that it attempted to effectuate personal service on Defendant Rechnitz at that address on three occasions, June 27, 2022, June 28, 2022, and July 7, 2022. (Declaration of Mark McCabe, attached hereto, at 8-10.) Plaintiff contends that on the first two occasions, there was no response from anyone inside, however on July 7, 2022, upon gaining access to the building, McCabe arrived with the door open and a number of people inside (McCabe Decl., 10, 11.) The process server announced he was serving important legal documents. (McCabe Decl., 11.) The woman allegedly took the documents without hesitation or reservation. (McCabe Decl., 11.) The next day, McCabe served those same documents to Defendant Rechnitz at the same address via U.S. Mail, as reflected in the Proof of Service. (Exhibit G, Proof of Service.)

Plaintiff argues that service upon Rechnitz was proper pursuant to Code of Civil Procedure 415.20(b). However, Plaintiff also notes that should this Court determine service upon Defendant Rechnitz was defective in any manner, Plaintiff has asked that he be allowed to remedy any issues related to service. Plaintiff also concedes that the proof of service does not have a declaration of due diligence, but has offered to file an amended proof of service with the Declaration of Diligence attached.

On this record, particularly with Mr. Rechnitz’ declaration providing proof that he neither lives nor works at either of the addresses Plaintiff’s investigation indicated he might be found, the Motion to Quash is granted. However, the Court encourages the parties to stipulate to accepting service on Mr. Rechnitz’ behalf so the case can move forward on the merits. In similar circumstances, with the evidence of due diligence and attempts at service on multiple occasions at addresses plaintiff’s investigation reflected as being ones where Mr. Rechnitz might be found, the Court might favorably consider granting a future motion for service by publication since other parties who have appeared in this case appear to be represented by the same counsel as Mr. Rechnitz.