Case Number: BC545681    Hearing Date: September 12, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
________________________________________
Hearing Date: Friday, September 12, 2014
Calendar No.: 11
Case Name: DMDE Properties, LP v. O’Kene
Case No.: BC545681
Motion: Motion to Quash Service of Process
Moving Party: Defendant Paul Okene
Responding Party: Plaintiff DMDE Properties, LP
Notice: OK

Tentative Ruling: Motion to quash service of process is denied. Defendant to respond to the Complaint within 10 days.

Background –
On 5/13/14, Plaintiff DMDE Properties, LP filed this action against Defendant Paul O’Kene arising out of alleged unauthorized conduct and misappropriation of funds arising out of Defendant’s employment as the property manager of a shopping plaza. Plaintiff asserts causes of action for (1) fraud and deceit, (2) conversion, (3) unjust enrichment, and (4) money had and received and accounting. On 7/10/14, Defendant filed a motion to quash service of process..

Motion to Quash Service –
“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that 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.” Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-40. “It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.” Id. at 1441-42 (citations omitted).

1. Objections
Defendant has objected to the evidence submitted by Plaintiff in opposition to the motion: all objections are overruled with the exception of those to the declaration of Samuel S. Sorejian, Esq, which are sustained in toto.

2. Hearing Date
To the extent Plaintiff argues that the hearing date on this motion is not timely pursuant to CCP § 418.10(b), Defendant correctly notes that a tardy hearing date does not deprive the Court of jurisdiction to consider the merits of the motion. Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296.

3. Sufficiency of Service
Plaintiff’s proof of service filed on 6/9/14 indicates substituted service on Defendant at 13415 Magnolia Blvd., Sherman Oaks, CA 91423 on 5/27/14 at 5:35 p.m. Defendant argues that service of process did not comply with CCP § 415.20 or the Hague Convention (CCP § 413.10(c)), submitting that he moved out of the United States in August 2013 to Nigeria following his mother’s death and has not resided in California for approximately 11 months. Okene Decl. ¶ 4.

In opposition, Plaintiff has submitted declarations from two managers of businesses located at the shopping plaza who state that they saw and spoke to Defendant on 5/24/14 (Figueroa Decl. ¶¶ 3-5; Bunk Decl. ¶¶ 3-5), attempting to dispute the credibility of Defendant’s declaration. However, Defendant’s presence in California at this time does not necessarily mean that Defendant’s declaration that he did not reside in California for approximately 11 months is false. Notably, Defendant’s declaration is vague as the dates.

Nevertheless, even if the Court assumed that Defendant did not reside in California at the time of the substituted service, Defendant fails to submit any evidence that the Magnolia address was not his usual mailing address at the time of the substituted service. CCP § 415.20(b). Indeed, Plaintiff has submitted evidence that Defendant’s 2013 W-2 was sent to the Magnolia address (Devine Decl. ¶ 2, Ex. A). Under these circumstances, the Court finds that the Magnolia address is a usual mailing address for Defendant. Because Defendant has failed to rebut the presumption of proper service, the motion to quash service of process is denied.