Case Number: KC066605    Hearing Date: July 08, 2014    Dept: J

Re: California Bank & Trust, etc. v. Wheelstar Cycle, Inc. USA, etc., et al. (KC066605)

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

Moving Parties: Defendants Wheelstar Cycle, Inc., USA, Diana Hui Kuan Tsai and Alvin M. Tsai

Respondent: Plaintiff California Bank & Trust

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

In this action for breach of contract, Plaintiff seeks balance due on a written loan agreement in the amount of $50,060.00. The Complaint, filed 1/15/14, asserts causes of action for:

1. Balance Due on Written Loan Agreements
2. Balance Due on Written Continuing Guarantees

The Case Management Conference is set for 7/8/14.

Defendants Wheelstar Cycle, Inc., USA (“Wheelstar Cycle”), Diana Hui Kuan Tsai (“Diana Tsai”) and Alvin M. Tsai (“Alvin Tsai”) (collectively “Defendants”) move for an order quashing the service of Summons and Complaint by Plaintiff California Bank & Trust (“Plaintiff”). The motion is made pursuant to CCP §§ 415.20 and 418.00 on the grounds that neither personal service nor legally sufficient substituted service was effected upon the Defendants.

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 to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (CCP 418.10(a)(1).)

“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 facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (internal quotes omitted); see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)

SERVICE ON DEFENDANTS DIANA TSAI AND ALVIN TSAI:

Under certain circumstances, service is authorized by delivering copies of the summons and complaint to someone other than defendant; and thereafter mailing additional copies to defendant. (CCP § 415.20.) A three-step process is required: (1) leave a copy of the summons and complaint either at the individual’s dwelling house (“usual place of abode”), usual place of business, or usual mailing address (other than a U.S. Postal Service post office box); (2) leave it with a “competent member of the household” or person “apparently in charge of his or her office, place of business, or usual mailing address,” at least 18 years old, who must be told what the papers are; and (3) thereafter, mail other copies of the summons and complaint (first class mail, postage prepaid) to the defendant at the place where the copies were left. (CCP § 415.20(b).)

“Dwelling house or usual place of abode” means the place which the defendant holds out as his or her principal residence, and where he or she is most likely to receive actual notice. (Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315 — service invalid where defendant was not shown to have had any connection with address at which substitute service attempted.)

Defendant Diana Tsai attests that she came home to her residence one evening to find two copies of a Summon and Complaint in this action lying in her front yard outside the gate (one marked for service on Wheelstar Cycle and the other marked for individual service without any notation designating which individual was being served); she received two copies of the Summons and Complaint in the mail (marked the same manner as the copy that was left at her residence); and that Defendant Alvin Tsai, her brother, does not reside at her residence. (Motion, Tsai Decl. ¶ 2.) Defendant Diana Tsai’s residence has pad-locked gates which bar entry into the front yard and access to the front door. (Ibid.)

Plaintiff, in opposition, submits the Declaration of John Salazar, a registered process server, who represents that after several attempts of personal service, Defendants were served by substituted service by serving John Doe occupant who refused the documents. Specifically, John Salazar noted: “On January 30, 2014 at 5:05 P.M.: served John Doe occupant refused documents I announced service Asian male 66 years 5’6” 160lbs with Gray Hair and Brown Eyes.” (Opposition Salazar Decl. ¶ 4, Exh. A.) Mr. Salazar also noted that the home was gated and that he rang the bell that was near the gate. (Ibid.)

Based on the declarations submitted, it appears that the substituted service on Defendant Diana Tsai was compliant with the requirements of CCP § 415.10 et seq. Mr. Salazar made a good faith effort to personally serve Defendant Diana Tsai at her residence, and on his fifth attempt of personal service, he “announced service” and left a copy of the Summons and Complaint with John Doe, who appears to be a competent member of the household. Thereafter, a copy of the Summons and Complaint was mailed to Defendants at the service address. Two or three attempts to personally serve defendant at a “proper place” ordinarily qualifies as “reasonable diligence.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

While Defendant Diana Tsai contends that she did not know whether she was served because the Summons and Complaint marked for individual service was void of any notation designating which individual was being served, the Summons and Complaint identifies Defendant Diana Tsai as a defendant in this matter. Thus, Defendant Diana Tsai’s motion to quash is denied, and she has 10 days to answer.

However, it appears that Defendant Alvin Tsai does not reside at the address where the service was made and thus, Defendant Alvin Tsai’s motion to quash is granted.

SERVICE ON CORPORATE DEFENDANT WHEELSTAR CYCLE:

Effecting service upon a corporation requires delivery of summons and complaint to some person on behalf of the corporation. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1437.) Service may be made upon “… a person authorized by the corporation to receive service of process.” (CCP § 416.10(b).)

The Proof of Service of Summons filed with the Court on March 26, 2014, demonstrates that service on Defendant Wheelstar Cycle was effectuated by PERSONALLY serving “DAVID D. MURRAY, AGENT AUTHORIZED TO RECEIVE.” Rosemary Hernandez, a registered process server, who signed the Proof of Service and noted: “On January 21, 2014 at 2:30 P.M.: served David D. Murray, Attorney Agent Authorized to receive, Caucasian male, 60+ years 6’3” 180 lbs. Brown Hair.” (Opposition, Hernandez Decl. ¶ 5.)

However, Mr. Murray attests that he was never served with a copy of the Summons and Complaint in this matter on behalf of Wheelstar Cycle. (Motion, Murray Decl. ¶ 3.)

Further, the Proof of Service notes that service was made on 300 Bristol Street North, Suite 100, Newport Beach CA 92660, the address reflected on the records of the California Secretary of State. (Opposition, Elder Decl., Exh. D.) However, it appears from the caption of the moving papers that Mr. Murray’s address is 1300 Bristol Street North, Suite 100, and that the address on the record with the California Secretary of State is not accurate.

Thus, it appears that Mr. Murray was not personally served as represented in the Proof of Service. Accordingly, Defendant Wheelstar’s motion to quash is granted.