Case Name: James McKinney v. San Jose Sports and Entertainment Enterprises, LLC, et al.

Case No.: 1-13-CV-240795

Motion by specially appearing defendant Prince Rogers Nelson to quash service of summons

Specially appearing defendant Prince Rogers Nelson moves to quash the service of summons under Code of Civil Procedure section 418.10.

Under the substitute service statute, if a copy of the Summons and Complaint cannot with “reasonable diligence” be personally delivered to the defendant, service may be effected by: (1) leaving a copy of the Summons and Complaint either at the individual’s usual place of abode, usual place of business, or usual mailing address; (2) leaving it with a “competent member of the household” or person “apparently in charge of his office or place of business,” at least 18 years old who must be told what the papers are; and (3) thereafter mailing copies of the Summons and Complaint (prepaid by first class mail) to the defendant at the place where the copies were left. (See Code Civ. Proc., § 415.20, subd. (b).) “[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.” (Sheard v. Super. Ct. (1974) 40 Cal.App.3d 207, 211.)

The court finds that substitute service was improper. The original proof of service indicates that on March 21, 2014, Plaintiff left a copy of the Summons and Complaint at Nelson’s “usual mailing address” at 10960 Wilshire Blvd., 5th floor, Los Angeles, CA 90024 with receptionist Cynthia Avila. (Trotter Decl., Ex. A.) After Nelson filed this motion, Plaintiff amended the proof of service on May 14, 2014, to state that substitute service instead was performed at Nelson’s “usual place of business.” (Anderson Decl., Ex. B.)

The evidence shows that Plaintiff served Nelson’s accountant, Nigro Karlin Segal Feldstein & Bolno (“NFSFB”) − “the only known tenant presently occupying the 5th floor” − by handing the Summons and Complaint to the receptionist. (Corbett Decl., ¶ 6; Trotter Decl., ¶ 2.) NFSFB’s office is not Nelson’s “usual mailing address” or “usual place of business”, as NFSFB only provides Nelson with advice on tax matters. (Trotter Decl., ¶ 3; see Corcoran v. Arou (1994) 24 Cal.App.4th 310, 315 [it is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served]; Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-17.) NFSFB also is not authorized to accept service on Nelson’s behalf. (Trotter Decl., ¶ 4.) As a result, Nelson did not receive actual notice of the lawsuit. (See Zirbes, supra, 187 Cal.App.3d at p. 1416 [the form of substituted service utilized must be reasonably calculated to give defendant actual notice of the proceedings].)

The motion to quash service of summons is GRANTED.