FEONIA HENRY, AN INDIVIDUAL, ET AL. VS SOKRATES KARIMIAN, AN INDIVIDUAL, ET AL.

Tentative Rulings

Case Number: *******8130 Hearing Date: December 22, 2022 Dept: 28

Motion to Quash Service of Summons

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 7, 2022 Plaintiffs Feonia Henry and Jahlea Ouattara, a minor, by and through her guardian ad litem Feonia Henry (collectively “Plaintiffs”) filed a Complaint. The operative pleading is the First Amended Complaint (“FAC”), which asserts causes of action for (1) assault, (2) battery, (3) IIED, (4) negligence, (5) negligent hiring, supervision, and retention, (6) false imprisonment, (7) violation of Civil Code sections 1940.2 and 1954, (8) breach of covenant of quiet enjoyment, (9) constructive eviction against several defendants, including Defendant Christopher Karimian (“Defendant”).

Trial is set for September 5, 2023.

PARTY’S REQUESTS

Defendant moves the Court to quash Plaintiffs’ service of the Summons and Complaint on the grounds that he was not served with the same.

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: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. (2) To stay or dismiss the action on the ground of inconvenient forum.” (Code Civ. Proc., 418.10, subd. (a)(1)-(2).)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“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” ”].) A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

DISCUSSION

Defendant moves the Court to quash service of summons on the ground that he was not served with the Summons and Complaint. In support of his Motion, Defendant’s friend, Edgar Poghosyan, submits a declaration, under penalty of perjury, that he was the only person at Defendant’s home at the time that Defendant was purportedly personally served. (Poghosyan Decl., 2-3.) Mr. Poghosyan states that he was at Defendant’s home waiting for Defendant to arrive home from work. (Id.) Mr. Poghosyan also states that he was not authorized to accept service on behalf of Defendant, and that when the process server asked if he was Defendant he responded that he was not Defendant, and that the process server left the Summons and Complaint on the floor outside of Defendant’s home. (Id. at 4.) Defendant also submits a declaration in support of the Motion, wherein he states, under penalty of perjury, that he was not at his home when he was purportedly served, and was at work. (Karimian Decl., 2-3.) Defendant also states that Mr. Poghosyan was the only person at Defendant’s home. (Id.)

Plaintiffs oppose the Motion on the grounds that the motion is untimely. Plaintiffs had granted an extension to file the instant Motion until October 4, 2022, and Defendant did not file the Motion until October 5, 2022. While Defendant’s Motion is untimely, the Court finds there is good cause to allow the Motion to be heard, as Defendant has provided evidence that he was not served with the Summons and Complaint, and Plaintiff failed to comply with the statutory service requirements. Accordingly, the Court will exercise its discretion, and rule on the merits as to this Motion.

Plaintiffs also points the Court to Summer v. McClanahan (2006) 140 Cl. App.4th 403, 410-11 to contend that strict compliance with service requirements is not required when the defendant receive actual notice. However, Plaintiff’s reliance on Summer is misguided, as the Summer court stated that the statutory provisions regarding service of process should be liberally construed to effectuate service when there has been “substantial compliance” with the statutory requirements. Here, Plaintiffs failed to substantially comply with the statutory service requirements, as Plaintiffs failed to serve Defendant, and left the Summons and Complaint with Mr. Poghosyan, who was not authorized to receive service on Defendant’s behalf.

The Court finds that Defendant has submitted evidence to rebut the presumption that he was served with the Summons and Compliant. Defendant submitted declarations that are signed under penalty of perjury that he was not served, and Plaintiffs have failed to offer any evidence that would cast doubt as to the statements made therein. While Plaintiffs submit the declaration of the process server, wherein he confirms that he served Defendant, when considering all of the evidence submitted by the Parties, Defendant has submitted sufficient evidence to rebut the presumption that he was served.

Thus, Defendant’s Motion to Quash Service of Summons is GRANTED.

CONCLUSION

Defendant’s Motion to Quash Service of Summons is GRANTED

Defendant is ordered to give notice of this ruling.

Defendant is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.