Case Name: Westlake Flooring Company LLC dba Westlake Flooring Services v. Friendly Wholesalers of California dba See Mo Cars, et al.
Case No.: 17CV314864

I. Background

This case arises from a loan whereby Westlake Flooring Company LLC dba Westlake Flooring Services, (“Plaintiff”) agreed to finance the vehicle inventory of Friendly Wholesalers of California dba See Mo Cars under a Loan and Security Agreement. According to the allegations in the Complaint, Plaintiff is in the business of financing vehicle inventory for car dealerships. Azzam Abdo and Jalal Shreim signed individual personal guarantees for all amounts owed by Friendly Wholesalers of California to Plaintiff, LLC under the Loan and Security Agreement.

Friendly Wholesalers of California subsequently entered into two promissory notes with Plaintiff wherein Friendly Wholesalers of California acknowledged receipt of $250,000 and then $1,000,000. Friendly Wholesalers of California agreed to repay these amounts with interest. These funds were used to purchase vehicles. Friendly Wholesalers of California, Azzam Abdo and Jalal Shreim (collectively, “Defendants”) failed to repay the loan. Plaintiff filed suit, seeking immediate possession of the vehicles purchased with the loaned money as security for the debt. Plaintiff asserted causes of action for breach of contract, breach of personal guarantee, declaratory relief, and recovery and possession of personal property.

Azzam Abdo (“Cross-Complainant”) then filed a cross-complaint against Plaintiff, ABS Finance Company, LLC, Wells Fargo Bank, Pinnacle Bank, Friendly Wholesalers of California, Jalal Shreim, and Sean Harmon (collectively, “Cross-Defendants”). Sean Harmon (“Cross-Defendant” with respect to section II, A) is the general manager of ABS Finance Company (“Cross-Defendant” with respect to section II, B).

The Cross-Complaint states soon after the flooring line provided by Plaintiff was extended to $1,000,000, ABS Finance Company, LLC agreed to provide an additional $200,000 flooring line to Friendly Wholesalers of California. Cross-Complainant eventually signed a personal guarantee for the $200,000 provided by ABS Finance Company, LLC. ABS Finance Company, LLC induced Cross-Complainant to sign the guarantee by stating it had checked Friendly Wholesalers of California’s documents and it was well qualified for the flooring line.

Allegedly if Plaintiff and ABS Financial Company, LLC had properly audited Friendly Wholesalers of California they would have known its true financial situation and been aware that it should not have received the loans or extensions that it did. Cross-Complainant did not want to sign as a guarantor on behalf of Friendly Wholesalers of California, but was convinced by Plaintiff’s assurance they had checked Friendly Wholesalers of California’s financial documents thoroughly. Cross-Complainant also asserts that he signed both guarantees as president of Friendly Wholesalers of California, not as an individual, and therefore did not agree to risk his personal assets.

Cross-Complainant alleges eighteen causes of action. The details of these causes of action and their relation to each cross-1`defendant are not significant to deciding the instant motion. Suffice to say that Cross-Complainant alleges causes of action for duress, breach of contract, fraud and deceit, negligent training, negligent misrepresentation, intentional misrepresentation, breach of the covenant of good faith and fair dealing, conversion, breach of fiduciary duty, declaratory relief, and elder abuse against the two moving Cross-Defendants.

Now before the Court are Sean Harmon’s and ABS Finance Company, LLC’s motions to quash service of the cross-complaint, to strike cross-complaint for lack of jurisdiction, and to strike the cross-complaint due to the existence of a superior action. The two motions are similar, but not precisely the same. The Court addresses Sean Harmon’s motion first, before turning to discuss the distinctions between Sean Harmon’s motion and ABS Finance Company, LLC’s. Both Sean Harmon and ABS Finance Company, LLC later filed declarations and errata addressing errors in their motions to quash.

II. Merits of the Motion

A. Motion by Cross Defendant Sean Harmon (Line 2)

Cross-Defendant presents two general arguments. First, Cross-Defendant asserts the Court lacks jurisdiction over him. Separate from the “jurisdictional” argument, Cross-Defendant contends that he has not been properly served and it is Cross-Complainant’s burden to prove effective service.

1. Motion to Strike Cross Complaint for Lack of Jurisdiction and Existence of a Superior Action

As a preliminary matter, Cross-Defendant’s motion is ambiguous in that it mixes legal doctrines. Cross-Defendant titles his moving papers as a motion to quash service of cross-complaint, a motion to strike cross-complaint for lack of jurisdiction, and a motion to strike cross-complaint due to existence of a superior action. The first portion of this title dealing with a motion to quash is apt. However, while Cross-Defendant titles his papers as two motions to strike, his points and authorities raises arguments regarding improper venue. Moreover, while Cross-Defendant presents facts related to venue, he frames these points as if they relate to personal jurisdiction. For background, the Court reviews the concepts of personal jurisdiction and venue.

Personal jurisdiction is the authority of a court to render judgment upon an individual, and is based upon the person’s relationship to the state. (See Watts v. Crawford (1995) 10 Cal.4th 743, 756 [discussing changes in personal jurisdiction law over time]; Pennoyer v. Neff (1877) 95 U.S. 714.) Code of Civil Procedure section 410.10 provides that courts of “this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” The personal jurisdiction of a state court is rooted in geography, and applies throughout the particular state. (See Global Packaging, Inc. v. Superior Court, (2011) 196 Cal.App.4th 1623, 1629.) “Generally speaking, a civil court gains jurisdiction over a person through one of four methods. There is the old-fashioned method—residence or presence within the state’s territorial boundaries. There is minimum contacts—activities conducted or effects generated within the state’s boundaries sufficient to establish a ‘presence’ in the state so that exercising jurisdiction is consistent with ‘traditional notions of fair play and substantial justice.’ A court also acquires jurisdiction when a person participates in a lawsuit in the courthouse where it sits, either as the plaintiff initiating the suit or as the defendant making a general appearance. Finally, a party can consent to personal jurisdiction, when it would not otherwise be available.” (Id. at p. 1629, internal citations omitted.)

Venue is a distinct but related concept. (See Global Packaging, Inc. v. Superior Court, supra, 196 Cal.App.4th at 1631.) Venue is the location or locations in a state where a case is properly heard. (See Id. at 1634 [distinguishing venue from forum, describing a state as a forum and a county as a venue].) Code of Civil Procedure section 392 et seq. describes where venue is proper. (Code Civ. Proc., § 392.) Generally venue is proper where one or more of the defendants reside at the time of the action. (Code Civ. Proc., § 395.) In breach of contract cases, such as this one, venue is proper where the defendant resides, where the contract was entered into, or where it was to be performed. (Code Civ. Proc., § 395(a).)

Turning to Cross-Defendant’s moving papers, Cross-Defendant cites only Code of Civil Procedure section 418.10 in his section titled “lack of jurisdiction.” Cross-Defendant does not identify which subdivision of this section is the basis of his motion. Apparently relying on Code of Civil Procedure section 418.10, Cross-Defendant argues “[t]his court is not the proper court for Cross-Complainant to adjudicate issues against Cross-Defendant.” (Mtn. to Quash, p. 4:1-2.) Cross-Defendant bases this argument on three points: his business is located in Corona, two contracts between the parties state disputes will be resolved in Orange County, California, or Riverside County, California, and there is already a pending action in Orange County, California. Cross-Defendant states in the same paragraph that “…this court is simply the improper venue and forum for an action between Cross-Complainant and this Cross-Defendant.” (Mtn. to Quash, p. 4:10-12.) A sentence later Cross-Defendant states, “[f]or each of these reasons, this Cross-Complaint, as to this Cross-Defendant, should be dismissed pursuant to Code of Civil Procedure §418.10.” (Id. at p. 4:14-16.)

Contrary to Cross-Defendant’s terse analysis, Code of Civil Procedure section 418.10 does not relate to venue or motions to transfer an action based upon improper venue. Code of Civil Procedure section 418.10 permits a motion for three purposes, none of which involve venue. Code of Civil Procedure section 418.10, subdivision (a)(1) permits a motion to quash service of process based upon a “lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1).) Section 418.10, subdivision (a)(2) permits a motion to “stay or dismiss the action on the ground of inconvenient forum.” (Code Civ. Proc., § 418.10 subd. (a)(2).) Insomuch as Cross-Defendant argues forum non conveniens based upon Code of Civil Procedure section 418.10(a)(2), that doctrine applies to the forum of California, rather than which locations are permissible venues for the action. (See Code Civ. Proc, § 410.30, subd. (a).) The doctrine is codified in Code of Civil Procedure section 410.30 subdivision (a), which states: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., § 410.30, subd. (a)(2).) Thus, if Cross-Defendant’s relies upon forum non conveniens through Code Civil Procedure section 418.10 subdivision (a)(2), his argument must fail because he seeks to relocate the litigation within the state of California, and does not meet the relevant standard for dismissal. (See Code Civ. Proc., § 410.30, subd. (a)(2).) Lastly, section 418.10, subdivision (a)(3) involves dismissal for failure to prosecute under Code of Civil Procedure section 583.110, et seq. (Code Civ. Proc., § subd. (a)(3).)

In sum, none of these three reasons to file a motion under Code of Civil Procedure section 418.10 relate to venue. Thus, the sole authority Cross-Defendant relies upon in support of his arguments for improper venue is inapplicable. Parties before the Court have a duty to cite the law necessary to support their argument. (See Cal. Rules of Court, rule 3.1113(b) [memorandum must include statement of law and discussion of legal authorities in support of position].) Cross-Defendant lack of citation to legal authority regarding venue or changing venue is fatal to his argument.

Accordingly, Cross-Defendants arguments regarding “jurisdiction” are inappropriately framed, and do not include necessary law.

2. Motion to Quash Service

Cross-Defendant next asserts a lack of proper service of the summons and complaint. Proper service of the summons and complaint in compliance with the Code of Civil Procedure is a prerequisite to acquiring personal jurisdiction over a defendant. (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150.) When service of summons is defective, a defendant may file a motion to quash service on the basis that the court lacks personal jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) Once a defendant files a motion to quash service, the burden is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence demonstrating the validity of the service. (Lebel v Mai (2012) 210 CA4th 1154, 1160; Boliah v. Super. Ct. (1999) 74 Cal.App.4th 984, 991; Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444.)

The Code of Civil Procedure permits several different types of service. Code of Civil Procedure section 415.10 states that a summons may be served by personal delivery of a copy of the summons and complaint to the person to be served. However, where personal service cannot be accomplished despite reasonably diligent efforts, Code of Civil Procedure section 415.20, subdivision (b) authorizes substitute service on individuals in lieu of personal delivery. (Code Civ. Proc., § 415.20, subd., (b); Ellard v. Conway (2001) 94 Cal.App.4th 540, 545.) Valid substitute service may be accomplished by leaving a copy of the summons and complaint at the defendant’s dwelling house or place of business in the presence of a competent member of the household or a person apparently in charge of his or her office and “thereafter” mailing a copy of the summons and complaint to that same place. (Code Civ. Proc., § 415.20, subd. (b).) Substitute service on an individual must be preceded by some attempt at personal service. (Code Civ. Proc., § 415.20, subd. (b) [“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served…”]; see Evartt v. Sup.Ct. (Kellett) (1979) 89 CA3d 795, 801; American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389 [two or three attempts at personal service sufficient to authorize substitute service].)

Service can also be accomplished via mail if the proper procedure is followed and the person to be served signs an acknowledgement of summons. (Code Civ. Proc., § 415.30.) Where a party cannot be served by any other method, service by publication is authorized. (Code Civ. Proc., § 415.50.)

Neither party presents evidence of personal service or service by publication. Similarly, although there is some discussion of signing for receipt of mail, neither party provides proof that Cross-Defendant signed an acknowledgement of summons pursuant to Code of Civil Procedure section 415.30. Thus, the only type of service remaining and at issue is substitute service.

Cross-Defendant argues in their motion that Cross-Complainant did not properly serve Cross-Defendant in that the “summons and Cross-Complaint in this matter were served using first class mail…” (See Mtn. to Quash, p. 4:25-27.) The declaration of Sean Harmon states that he received the Summons and Cross-Complaint in this matter in his incoming mail on or about October 27, 2017, but neither he nor anyone else at ABS “sign[ed] for receipt of the mail.” (Decl. of Sean Harmon, ¶ 7.)

Cross-Defendant’s position with respect to service has changed since the filing of the instant motion and attached declaration. Subsequent to filing the motion and Cross-Complainant’s opposition, Cross-Defendant submitted a declaration in which Cross-Defendant’s counsel declares a further effort at service had been made. Cross-Defendant’s counsel states Cross-Complainant “re-served” Cross-Defendant. Cross-Defendant’s counsel also states if the Court wishes to moot the hearing set for April 3, 2018, in favor of the subsequent motion to strike, he would not object.

The Court declines to moot this issue based upon this new declaration for two reasons. First, it is unclear from the limited declaration if Cross-Defendant is conceding or waiving the issue of service. The statement that Cross-Complainant “re-served” the Cross-Complaint implies a repeat of a prior service, and Cross-Defendant does not indicate whether this new service was free from defects. If Cross-Defendant believes the issue of service is no longer significant because this new service was sufficient, as the moving party he could take the issue off calendar. He has not done so. Moreover, it is unclear whether Cross-Defendant’s new declaration refers to one of the two proofs of service that were submitted with Cross-Complainant’s opposition, or an additional effort at service not reflected in any papers now before the Court.

Turning to Cross-Complainant’s position, he asserts service was proper, and even if the first service was defective, Cross-Defendant was re-served on December 8, 2017. In support of these arguments Cross-Complainant presents two proofs of service.

The first is signed by Pearl Abdo, and indicates service of several documents by substitute service. (Decl. of Azzam Abdo, Exhibit 5.) However, the proof of service is incomplete in that it does not discuss when substitute service was achieved, the relationship of the person served to the Cross-Defendant, or whether the documents were mailed thereafter. (Ibid.) Significantly, the proof of service contains no indication of any attempt at personal service. Finally, box 5(c) is also checked, indicating on October 25, 2017 service was attempted via sending an acknowledgement of summons through the mail. (Ibid.) Cross-Complainant does not present a copy of any acknowledgment signed by Cross-Defendant.

The second proof of service is signed by a sheriff or marshal, and indicates substitute service to Vanessa Herrera, a receptionist for Sean Harmon, on February 6, 2018. (Decl. of Azzam Abdo, Exhibit 2.) The proof of service indicates the documents were thereafter mailed on February 12, 2018. (Ibid.) The second proof of service contains no indication of any attempt at personal service, and the box indicating a declaration of diligence is attached is left blank. This may be the subsequent effort at service referenced by Cross-Defendant.

While Cross-Complainant does not expressly identify which method of service he used, both proofs of service upon which he relies indicate substitute service. Substitute service requires some showing personal service cannot be achieved “with reasonable diligence.” (See Code Civ. Proc., § 415.20, subd. (b).) Cross-Complainant does not assert he made any attempt to personally serve Cross-Defendant or that he could not have personally served Cross-Defendant. Absent some evidence Cross-Complainant could not “with reasonable diligence” personally serve Cross-Defendant, substitute service is not authorized and ineffective. (See Evartt v. Superior Court, supra 89 Cal.App.3d at 799.)

Accordingly, Cross-Complainant has failed to meet his burden in showing service was proper. Without proper service, the Court lacks jurisdiction over Cross-Defendant.

3. Cross-Complainant’s Counter Arguments

Cross-Complainant contends that even if service was ineffective, the motion should still be denied because Cross-Defendant waived any defect in service by responding to discovery and because the motion to quash is untimely. Cross-Complainant makes several miscellaneous arguments, including that the motion should be denied as unintelligible and that service upon him was improper and the declaration filed in reply to his opposition should be disregarded.

a. Waiver by Response to Discovery

Taking any action that constitutes a general appearance such as filing a motion prior to filing a motion to quash waives the issue of personal jurisdiction and any defect in notice. (See Code Civ. Proc., § 418.10, subd. (e).) Engaging in discovery can be considered a general appearance and give the court jurisdiction in a manner similar to filing a motion. (See Estate of Heil (1989) 210 Cal.App.3d 1503, 1512.) There is an exception to this rule if the discovery or response thereto relates to the issue of personal jurisdiction. (See 1880 Corp. v. Superior Court of City and County of San Francisco (1962) 57 Cal.2d 840, 843 [holding objections to interrogatories made during the pendency of a motion to quash are not a general appearance].) Whether a party has made a general or a special appearance by engaging in discovery is a judicial determination dependent on the circumstances. (Islamic Republic of Iran v. Pahlavi (1984) 160 Cal.App.3d 620, 628 [upholding trial judge’s determination taking deposition and posing interrogatories was a special appearance].)

Here, Cross-Complainant presents an exhibit to show that Cross-Defendant engaged in discovery prior to filing the instant motion. That exhibit contains a single page of responses to requests for admission. This single page is only part of a larger document. The responses on this page are comprised of objections. Each of Cross-Defendant’s responses includes the same sentence: “Responding party has yet to be served with process in this matter and is therefore not under the jurisdiction of the court and thus this Request for Admission is untimely.” (Decl. of Azzam Abdo, Exhibit 4.)

Cross-Defendant responded to discovery by asserting a lack of personal jurisdiction based upon a lack of service. The discovery responses provided by Cross-Defendant relate directly to the issue of personal jurisdiction and the argument Cross-Complainant had not properly served Cross-Defendant. Thus, Cross-Defendant has not waived the issue of personal jurisdiction, and the discovery response was a special appearance.

b. Timeliness of the Motion to Quash

Next, Cross-Complainant argues that the motion must be denied because the because it is untimely. Cross-Complainant asserts “Sean was served the summons on 10/27/2018 [sic] but did not response [sic] until 12/4/2017when [sic] he filed a motion to Quash.” (Opp., p. 5:23-25.) Cross-Complainant asserts that Cross-Defendant did not respond until 38 days after the service of the summons, and therefore the motion is untimely.

A motion to quash must be made at a party’s initial appearance in the action, or before the last day to plead. (Code of Civil Procedure, § 418.10(a).) Code of Civil Procedure section 432.10 allows thirty days “after service” to move, plead, or otherwise demurrer to a cross complaint. (Code Civ. Proc., § 432.10.) Code of Civil Procedure section 415.20, states that substitute service “is deemed complete on the 10th day after the mailing.” (Code Civ. Proc. § 415.20.) Code of Civil Procedure section 415.30, subdivision (c) states that service via notice and acknowledgement is effective upon execution of the written acknowledgement of receipt of summons.

Cross-Complainant’s two proofs of service indicate that if Cross-Defendant was served it was via substitute service or notice and acknowledgement. The first proof of service indicates substitute service, but does not indicate when the documents were mailed as part of that substitute service. The Court cannot assess the timeliness of the instant motion to quash without this information.

Additionally, the first proof of service also indicates Pearl Abdo mailed the summons and cross-complaint in an attempt to achieve service by notice and acknowledgement on October 25, 2017 (see Code Civ. Proc., § 415.30). Cross-Complainant has not provided the Court with a copy of any acknowledgement signed by Cross-Defendant. Thus, Cross-Defendant has not shown service was effectuated via acknowledgement at all, let alone when service was effectuated, or whether the motion to quash was more than 30 days after service. Therefore, Cross-Complainant has not shown the motion to quash was untimely based upon the first proof of service.

Turning to the second proof of service, it states the cross-complaint and summons were left at Sean Harmon’s business on February 6, 2018 with Vanessa H. and mailed on February 12, 2018. The motion to quash was filed in 2017, well before the second proof of service was served, let alone within thirty days after it.

Therefore, Cross-Complainant has not shown the motion to quash was untimely.

c. Miscellaneous Arguments

Cross-Complainant also contends that Cross-Defendant’s motion should be denied because it is unintelligible, has many false statements, [sic] very confusing as to what cross-Defendant intended to say and therefore this motion should be denied.” (Opp., p. 2:22-24.) All parties have a duty to include legal authority in support of their position in their moving papers. (See Cal. Rules of Court, rule 3.1113(b).) Cross-Complainant cites no law allowing the Court to deny a motion because it contains factual inaccuracies or ambiguity. Even ignoring the lack of legal citation, Cross-Complainant does not explain how these supposedly unintelligible facts alter the relevant legal analysis.

Cross-Defendant apparently noticed some factual inaccuracies, including improper designations of Cross-Complainant and Cross-Defendant. Cross-Defendant sought to explain these errors by filing a declaration and an errata consisting of a corrected filing. Cross-Complainant filed a declaration in response to the errata, stating that the changes altered essential facts, such as to the fact that Cross-Complainant was not properly served. Cross-Complainant, via a declaration, asks the Court, to ignore the errata on the ground that Cross-Complainant did not have sufficient time to address the changes.

The Court has reviewed the errata and the original motions to quash. The Court does not find any new arguments, lines of reasoning, or citations in the errata. The changes appear to have been of the nature of typographical errors. For example, whereas the original Motion to Quash stated “Cross-Complainant does business in Corona…” (Motion to Quash, p. 4:3-4.) the errata states “ABS does business in Corona…” (Errata, p. 4:2-3.)

Insomuch as Cross-Complainant states Cross-Defendants altered the fact that Cross-Complainant was not properly served, Cross-Defendant is incorrect. That particular error remains in the introduction of the errata. However, it is unimportant because the body of the motion makes clear the motion is challenging service of Cross-Defendant.

Regardless, the issue of whether Cross-Complainant was properly served is simply not before the Court at this time. The Court cannot make decisions on issues and topics not before it. (See Baar v. Smith (1927) 201 Cal. 87, 100 [court must act judicially and only on issue before it].) Therefore, Cross-Complainant’s argument that ABS Finance Company, LLC improperly served Cross-Complainant in another lawsuit is irrelevant.

B. Motion by Cross Defendant ABS Finance Company, LLC (Line 3)

Turning to the next line on the calendar, Cross-Defendant ABS Finance Company, LLC submits a similar motion. Rather than restate the same analysis, the Court addresses only the significant differences between the two motions.

1. Superior Lawsuit in Another County

The primary difference between the two motions is that ABS Finance Company, LLC presents additional argument regarding the parallel case in Orange County Superior Court. ABS Finance Company argues parties in a lawsuit are barred from brining multiple lawsuits against one another. In support of this argument, Cross-Defendant requests the Court take judicial notice of a pending action in Orange County Superior Court and “either stay this action and or dismiss this action due to that pending and controlling action.” (Motion to Quash, pp. 4:27 to 5:1-2.) Cross-Defendant’s argument that the present case is barred by the existence of another action is premised upon its request for judicial notice, and a statement in the declaration of Sean Harmon.

Generally, court records are proper subjects for judicial notice. (Evid. Code, § 452, subd. (d).) Cross-Defendant’s request, however, is procedurally improper. First, the request is not presented in a separate document as required by California Rules of Court, rule 3.1113(l). Second, Cross-Defendant did not provide a copy of any requested document to the Court or the opposing party. (See Cal. Rules of Court, rule 3.1306(c).) Third, Cross-Defendant fails to adequately identify the matters for which judicial notice is sought. A request for judicial notice must list “the specific items for which notice is requested.” (Cal. Rules of Court, rule 3.1113(l).) The entire case file simply does not constitute a specific item; Cross-Defendant neglects to identify specific records in the case that they want the Court to consider. For these reasons, judicial notice of the other case file will not be permitted. (See Cal. Rules of Court, rule 3.1113(b).) Thus, the only factual support for Cross-Defendant’s argument is a line in Sean Harmon’s declaration.

Even if the Court was to consider that statement to be sufficient factual support, Cross-Defendant presents no law concerning multiple lawsuits between the same parties in different counties. Parties must cite law in support of their arguments. (See Cal. Rules of Court, rule 3.1113(b).) Cross-Defendant fails to cite any law discussing similar facts or supporting its position that this cross-claim should be dismissed or stayed pending the resolution of the other matter. Accordingly, based upon a lack of factual and legal support, Cross-Defendant’s argument that the present Santa Clara Superior Court cross-complaint is barred is unpersuasive. Accordingly, Cross-Defendant’s arguments regarding venue fail for the same reasons they did above, and additional argument regarding the action in Orange County Superior Court does not alter this result.

2. Service of Process

Turning to service of process, substitute service is a valid method of service upon a corporation. (See Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013.) However, unlike substitute service on an individual, substitute service on an entity such as a corporation does not require a prior effort to achieve personal service. (See Code Civ. Proc., § 415.20, subd. (a).) The burden remains upon Cross-Complainant to demonstrate proper service. (See Lebel v Mai, supra, 210 CA4th at 1160.) Cross-Complainant presents two proofs of service, which it argues show proper service of ABS Finance Company, LLC. The first is signed by Pearl Abdo, and is similar to the first proof of service submitted with respect to Sean Harmon. (Decl. of Azzam Abdo, Exhibit 7.) As the Court discussed above, this proof of service is incomplete as to substitute service. It does not indicate that the documents were mailed after being served, nor for that matter does it indicate that the documents were left with a person apparently in charge of that location. In sum, this proof of service does not show Cross-Complainant complied with the statutory requirements for substitute service.

The second proof of service is signed by a registered California process server, and indicates substitute service to Michael Bert, on “12/8.” (Decl. of Azzam Abdo, Exhibit 8.) This proof of service indicates the documents were left with someone of 18 years of age who appeared be in charge of the business. However, the proof of service is incomplete in that it does not state the documents were mailed thereafter. As with the previous proof of service, the box labeled 5b(4), which states “I thereafter mailed … copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc., §415.20)[,]” is not checked. (Ibid.) Substitute service is not effective until the tenth day after mailing. (Code Civ. Proc., § 415.20.) Thus, if the relevant documents were never mailed, service was ineffective. (See Ibid.) Cross-Complaint provides no evidence the documents were mailed in compliance with Code of Civil Procedure section 415.20, and therefore the second attempt at substitute service was ineffective.

Here, neither proof of service indicates proper substitute service was effectuated. Neither proof of service states the server mailed the relevant documents after leaving them at the place of business. Accordingly, Cross-Complainant has not met his burden in showing service was proper.

Insomuch as Cross-Complainant argues that Cross-Defendant failed to respond or file the motion to quash within the time allowed such argument lacks the prerequisite facts. Substitute service is not effective until the tenth day after mailing. (Code Civ. Proc., § 415.20.) A party has thirty days following service to plead or file a motion to quash. (See Code Civ. Proc., § 432.10.) Cross-Complaint has not provided evidence of when the documents were mailed after being left at the business. Cross-Complainant cannot establish the response was untimely until it establishes the date the documents were mailed, and the date service was effective.

III. Conclusion

Cross-Complainant has not met his burden of demonstrating he properly served Cross-Defendants. Service of Sean Harmon was improper in that Cross-Complaint failed to provide any evidence that despite reasonable diligence he was unable to achieve personal service. Similarly, service of ABS Finance Company, LLC was improper in that Cross-Defendant failed to show the documents were mailed in compliance with Code of Civil Procedure section 415.20 after being left with a person in charge at the location. Based on the above, Cross-Defendant’s motion to quash service is GRANTED.

The Declaration of Jeffrey B. McMillen suggests that the moving Cross-Defendants may wish to waive the issue of service, or that there may have been some further attempt at service beyond those examined here. If this ruling creates difficulty for either Cross-Defendant, they may of course waive any defect in service by making a general appearance.

Cross-Defendant’s other arguments regarding jurisdiction, venue, and another action are inapt or insufficiently supported. Accordingly, the motions to strike the Cross-Complaint based upon improper venue and a superior action elsewhere are DENIED.