Case Name:   Gippetti v. Hogan, et al.

Case No.:       1-13-CV-257927

After full consideration of the arguments and the authorities submitted by each party, the Court makes the following rulings:

Defendants Douglas Maynard (“Maynard”), Moira Hogan (“Hogan”), and Hogan & Maynard, A Professional Corporation (“the Firm”) (collectively, “Defendants”) move to quash service of process.  (See Code Civ. Proc. [“CCP”], § 418.10, subd. (a)(1).)

Plaintiff Jeffrey Gippetti (“Plaintiff”) bears the burden to prove by a preponderance of the evidence the validity of the service.  (See Boliah v. Superior Court (1999) 74 Cal.App.4th 984, 991.)  The statutes regarding service of process are liberally construed to effectuate service when the defendant receives actual notice.  (Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1436.)  In his opposition, Plaintiff relies on the three proofs of service (“POS”) and declaration of diligence by Trenton Finister (“Finister”), a registered process server, filed on April 11, 2014.[1]  The filing of the POS creates a rebuttable presumption that service was proper.  (See id., at pp. 1441-1442.)  Moreover, there is a rebuttable presumption that the service was accomplished as described in the POS and declaration of diligence.  (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390, citing Evid. Code, § 647 and Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)  According to the POS and declaration of diligence, after making three attempts to personally deliver copies of the summons and complaint to Defendants, Finister left copies of the summons and complaint with the receptionist who was apparently in charge of Defendants’ business address—1151 Minnesota Avenue in San Jose (“Minnesota Avenue Address”)—after informing the receptionist of the general nature of the papers, and mailed copies of the summons and complaint to Defendants at that address, on April 18, 2014.

Defendants do not dispute that the Minnesota Avenue Address is their business address.[2]  Rather, they argue that their motion should be granted because (1) Plaintiff did not try to personally serve them with reasonable diligence, (2) they never received the papers in the mail, (3) Finister’s description of the receptionist is inaccurate, and (4) Finister’s signatures on the POS and declaration of diligence do not match his signatures on other documents in Defendants’ possession.[3]

With respect to the first argument, Plaintiff was not required to attempt to personally deliver the papers to Firm.  (See CCP, §§ 415.20, subd. (a) [authorizing service “in lieu of” personal delivery by leaving a copy of the summons and complaint at the business address of the business entity’s agent] & 416.10, subd. (b) [service on the business entity’s president is proper]; see also Maynard’s declaration, ¶ 2.)

As for Hogan and Maynard, substitute service by leaving a copy of the summons and complaint at their business address is proper so long as the papers “cannot with reasonable diligence be personally delivered.”  (See CCP, § 415.20, subd. (b).)  In his declaration of diligence, Finister states that he attempted to personally deliver the papers to Hogan and Maynard at the Minnesota Avenue Address on April 16, 2014, April 17, 2014, and April 18, 2014, but Maynard and Hogan were unavailable on each occasion.  This declaration creates a presumption that the reasonable diligence requirement was satisfied.  (See Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392 [two or three attempts to personally deliver the papers at a proper place satisfies the “reasonable diligence” requirement].)  In an effort to rebut the presumption, Maynard declares that “[a]s none of the Defendants were even aware that any attempts were being made to serve them, the reasonable diligence requirements is not met,” and “[s]taff at the law firm are instructed to report the full extent of any interactions with persons coming into the firm,” but “[n]o reports of any persons coming in to serve papers have been received.”  (Maynard’s decl., ¶ 10.)  However, evidence that Defendants did not know that someone had tried to personally serve them does not rebut the presumption created by Finister’s declaration, since there is no indication that Finister informed Defendants’ staff that he was attempting to serve personally deliver a copy of the summons and complaint.  Thus, Defendant’s assertion is not well-taken.

Second, Defendants argue that they never received copies of the summons and complaint in the mail; however, since CCP section 415.20 requires that the server mail copies of the summons and complaint—as opposed to requiring the server to ensure that the summons and complaint are actually received—whether Defendants received copies of the summons and complaint in the mail is immaterial to the issue of whether Plaintiff properly served the papers.  Accordingly, Defendants’ argument is unavailing.

Third, Defendants insist that Finister’s description of the receptionist at the Minnesota Avenue Address is inaccurate, and therefore, it necessarily follows that they have not been properly served.  In the POS, Finister states that he served Defendants by informing the person who was “apparently in charge at” Minnesota Avenue Address—a receptionist whom Finister identified as “Paula” and describes as a 55 year-old Caucasian female weighing approximately 120 pounds with light brown hair —of the general nature of the papers and leaving a copy of the summons and complaint with her at that address at 2:20 p.m. on April 18, 2014.  This evidence creates a rebuttable presumption that Finister left the papers with a person “who [was] apparently in charge” at Defendants’ usual place of business.  In an effort to rebut the presumption, Maynard declares that Paula left work at approximately an hour before Finister declares to have left the papers with her, and describes Paula as a 31 year-old woman of Mexican heritage with dark brown hair weighing approximately 148 pounds.  (Maynard’s decl., ¶¶ 13-14 & fn. 1.)

Maynard speculates that Finister learned Paula’s name by calling the Firm on the telephone and including Paula’s name in the POS without serving the papers.  (Id., ¶ 15.)  This evidence is insufficient to rebut the presumption created by the POS.  If anything, Defendants’ evidence shows that Finister left the papers with a receptionist whom he believed was named Paula, but he possibly interacted with another member of Defendants’ staff and mistakenly believed her name was “Paula.”  Regardless of whether Finister left the papers with Paula or some other member of Defendants’ staff, Defendants do not dispute that the Minnesota Avenue Address is their business address, and do not proffer evidence disputing Finister’s description of the receptionist as an individual over the age of 18 who was apparently in charge of the office.  (See CCP, § 417.10, subd. (a); but see Trackman v. Kenney (2010) 187 Cal.App.4th 175, 184 [substitute service does not require the affidavit to include the true name of the person with whom the papers are left].)  Defendants’ argument is therefore without merit.

In addition, Defendants maintain that Finister’s signatures on the POS and declaration of diligence are “fraudulent” because they do not match the signature on a document that he supposedly signed in 2006.  Defendants proffer no legal authority for the proposition that changes to a server’s signature over an eight-year period somehow affect the presumption created by the server’s affidavit.  Therefore, Defendants’ contention is unavailing.

In their reply papers, Defendants advise that “partial, incomplete copies of the complaint” were left at their office on June 6, 2014, and urge the Court to nevertheless grant their motion to quash.  However, by Defendants’ own evidence, Plaintiff has substantially complied with the CCP’s service procedures.  (See Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416 [substituted service must be reasonably calculated to give defendant actual notice of the proceedings]; see also Corcoran v. Arou (1994) 24 Cal.App.4th 310, 315 [there must be a connection between the address at which substituted service is made and the party to be served].)

In light of the foregoing, Defendants’ motion to quash is DENIED.  Defendants shall file a responsive pleading within 15 days after Plaintiff has served notice of entry of the order signed by the Court.  (See CCP, § 418.10, subd. (b).)

The Court will prepare the order.