Case Number: BC682388 Hearing Date: February 20, 2018 Dept: 47

Roberto Espino v. Morrison Residential Services, Inc.

MOTION TO QUASH SUMMONS

MOVING PARTY: Specially Appearing Defendant Morrison Residential Services

RESPONDING PARTY(S): Plaintiff Roberto Espino

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an individual wage and hour claim.

Specially Appearing Defendant Morrison Residential Services moves to quash service of summons due to defective service.

TENTATIVE RULING:

Specially Appearing Defendant Morrison Residential Services’ motion to quash service of summons is DENIED.

Defendant is ordered to respond to the Complaint within 30 days.

DISCUSSION:

Motion To Quash Service of Summons

“When a defendant challenges [personal] 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. . . .” (Citation omitted.)” Floveyor International v. Superior Court (1997) 59 Cal.App.4th 789, 793.

“A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808. Earlier case law even held that there is “no duty to act upon a defectively served summons. The requirement of notice ‘is not satisfied by actual knowledge without notification conforming to the statutory requirements’ [citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place. [Citations.]’” Kappel v. Bartlett (1988) 200 Cal. App. 3d 1457, 1466-67. However, the strict application of service requirements in the earlier line of cases has been relaxed somewhat where a defendant has received actual notice after an attempt to comply with the service statutes, as stated by the Second District Court of Appeal in Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410-11:

The liberal and practical approach to service of process has been followed in subsequent Court of Appeal decisions. In Gibble v. Car-Lene Research, Inc. the court stated: “It is well settled that strict compliance with statutes governing service of process is not required. Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.”

(Bold emphasis and underlining added.)

Moving party Defendant indicates that Plaintiff did not serve the summons and complaint on Defendant Morrison Residential Services, Inc., as Plaintiff merely dropped the summons and complaint off at an old address unaffiliated with Defendant or its agent for service of process.

The proof of service filed on December 1, 2017 indicates that, after reasonable diligence to effectuate personal service upon, Defendant Morrison Residential Services, Inc., a California Corporation was served by substituted service upon Bret John Williams, Agent For Service of Process, by the process server leaving the documents on November 25, 2017 upon Beverly Doe, Mother, co-occupant at 870 S Barnett St, Anaheim CA 92805, a competent member of the household over the age of 18 who was informed of the general nature of the papers, and by thereafter mailing a copy of the summons and complaint to that address on November 27, 2017. This substituted service complied with CCP § 415.20 as to Bret John Williams as Agent for Service of Process. See Opposition, Exh. A.

Plaintiff has submitted a copy of the California Secretary of State record search, as of February 4, 208, which reflects that Bret John Williams is designated as Agent for Service of Process at 870 S Barnett St, Anaheim, CA 92805. Opposition, Exh. B. This is the address at which substituted service was effected. See also Statement of Information filed on March 7, 2017, Opp. Exh. C (reflecting the same agent for service of process at the same address as above).

Service upon a corporation is properly effected by serving the person designated as agent for service of process pursuant to Corporations Code § 1502. CCP § 416.10(a). A corporation is required to designate an agent for service of process, whose capacity to act as agent has not terminated. Corp. Code, § 1502(b),(e) & (j) provide:

(b) The statement required by subdivision (a) shall also designate, as the agent of the corporation for the purpose of service of process, a natural person residing in this state or a corporation that has complied with Section 1505 and whose capacity to act as an agent has not terminated. If a natural person is designated, the statement shall set forth that person’s complete business or residence street address. If a corporate agent is designated, no address for it shall be set forth.

. . .

(e) Whenever any of the information required by subdivision (a) is changed, the corporation may file a current statement containing all the information required by subdivisions (a) and (b). In order to change its agent for service of process or the address of the agent, the corporation must file a current statement containing all the information required by subdivisions (a) and (b). Whenever any statement is filed pursuant to this section, it supersedes any previously filed statement and the statement in the articles as to the agent for service of process and the address of the agent.

. . .

(j) A corporation shall certify that the information it provides pursuant to subdivisions (a) and (b) is true and correct. No claim may be made against the state for inaccurate information contained in the statements.

Corp. Code, § 1502(b), (e) & (j) (bold emphasis added).

Because Bret John Williams is the designated agent for service of process in the Statement of Information required to be filed with the Secretary of State, Defendant Morrison Residential Services, Inc. is publicly holding Williams out as its ostensible agent for service of process. Service of process upon a person with ostensible authority to accept service suffices to acquire jurisdiction over a corporation:

As we shall explain, we find that defendant corporation’s designation in its application for a stock permit of Binney, Sr., as its secretary-treasurer, clothed him with ostensible authority to accept service of process. Because service upon a corporate agent with ostensible authority to accept service suffices to acquire jurisdiction over the corporation, we conclude that defendant corporation has been properly served and can present no viable reason for setting aside the default judgment entered against it.

Pasadena Medi-Center Associates v. Superior Court of Los Angeles County (1973) 9 Cal.3d 773, 777 (bold emphasis and underlining added).

The principle of Oro Navigation, which rests upon the perennial proscription that one should not profit from his own wrong, applies forcefully here. Defendant corporation, having misled plaintiff, bears the responsibility for plaintiff’s failure to serve an authorized corporate officer, and should not be permitted to strip itself of assets in order to avoid the payment of an uncontested judgment. If the rule were otherwise we would make of process “a special preserve in which deception pays, and technical precision prevails over substantial justice.” (Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 440 [96 Cal. Rptr. 571, 487 P.2d 1211].) We conclude therefore, that plaintiff, by serving Binney, Sr., a corporate agent with ostensible authority to receive process, effected valid service upon the defendants. The writ of certiorari and peremptory writ of mandate are denied, and the alternative writ of mandate is discharged.

Pasadena Medi-Center Associates, supra, Cal.3d at 782-83 (bold emphasis added).

Moreover, Defendant has received actual notice of this lawsuit, as evidenced by its filing this motion to quash.

Section 415.20, subdivisions (a) and (b) authorize substitute service of process in lieu of personal delivery. Statutes governing substitute service shall be “liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant . . . . [Citation.]” (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal. App. 4th 1387, 1392 [8 Cal. Rptr. 2d 351] (Bein).)

Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (bold emphasis added).

Accordingly, because substituted services was effected at the address of the ostensible agent for service of process as represented to the public by Defendant Morrison Residential Services, which led to actual notice on the part of Defendant, service of the summons and complaint was effective to acquire jurisdiction over Defendant.

In light of the foregoing, the motion to quash is DENIED.

Defendant is ordered to respond to the Complaint within 30 days.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 20, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court