Case Name: Elle W. Ko v. Shawn Mackenzie

Case No.: 18CV326537

Motion to Quash Service of Summons and Complaint and Dismiss for Failure to Timely Serve

Plaintiff Elle W. Ko (“Ko”) was sexually assaulted at defendant Shawn Mackenzie’s (“Mackenzie”) business, Vivre Fitness, by an employee named Delmar Richard Robertson (“Robertson”). (Complaint, ¶IT-1.) Robertson solicited athletic women by posting on the “gigs” section of Craigslist.com offering monetary compensation to test an organic massage cream with the intent to commit sexual battery on them. (Id.) Robertson used Vivre Fitness as a venue for his acts and to increase the credibility of his fraudulent advertisements. (Id.) Robertson appeared to have done this without defendant Mackenzie’s knowledge. (Id.)

After being assaulted, plaintiff Ko filed a police report and posted warning messages on Craigslist.com alerting others about the on-going soliciting advertisements. (Id.) Robertson contacted plaintiff Ko stating he had resigned from Vivre Fitness, was selling his home and leaving the geographical area. (Id.) Plaintiff Ko contacted Vivre Fitness to confirm whether Robertson resigned. (Id.)

On April 15, 2016, defendant Robertson replied stating Robertson did resign and requested plaintiff Ko remove her posts from Craigslist. (Id.) Plaintiff continued to see similar soliciting ads on Craigslist after Robertson resigned and received e-mails from people who alleged that they had also been similarly defrauded and molested in the past. (Id.) Plaintiff Ko had reason to believe Robertson was still using the same scheme and was not stopping. (Id.) Defendant Mackenzie effectively condoned Robertson’s actions by requesting plaintiff Ko remove warning messages to the general community. (Id.) Plaintiff Ko is shocked and disturbed by defendant Mackenzie’s behavior and general attitude toward the community, compounding the psychological trauma plaintiff Ko suffered during and after the sexual battery. (Id.)

On April 16, 2018, plaintiff Ko filed a Judicial Council form complaint against defendant Mackenzie asserting a cause of action for intentional tort.

On July 26, 2018, defendant Mackenzie filed the motion now before the court, a motion to quash service of plaintiff Ko’s summons and complaint and dismiss for failure to timely serve.

I. Defendant Mackenzie’s motion to quash service of plaintiff Ko’s summons and complaint is GRANTED.

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶4:414, p. 4-69 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg).) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg, supra, 53 Cal.App.4th at p. 808.) “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.’” (Id. at p. 809.)

Appellant was under no duty to act upon a defectively served summons. The requirement of notice ‘is not satisfied by actual knowledge without notification conforming to the statutory requirements’ [citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.

(Kappel, supra, 200 Cal.App.3d at pp. 1466 – 1467.)

A “defendant’s first line of attack normally is a motion to quash service for lack of personal jurisdiction under Code of Civil Procedure section 418.10, subdivision (a)(1). The same motion is used to attack defects in the manner in which summons was issued or served.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶3:376, p. 3-108.) “Without valid service of summons, the court never acquires jurisdiction over defendant. Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant.” (Id. at ¶4:413, p. 4-69 citing Code Civ. Proc. §418.10, subd. (a)(1).) Code of Civil Procedure section 418.10, subdivision (a)(1) states, in pertinent part,

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 for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

“[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. Superior Court (1974) 40 Cal.App.3d 207, 211.) “Although the defendant is the moving party, the burden of proof is on the plaintiff.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶3:384, p. 3-111 citing Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793 (Floveyor), et al.) “[T]he burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize).) “Where a motion to quash is made, the burden of proof is on the plaintiff to establish the facts of jurisdiction, by declarations, verified complaint or other evidence.” (2 Witkin, California Procedure (4th ed. 1996) Jurisdiction, §211, p. 775 – 776.)

Code of Civil Procedure section 415.30, subdivisions (a) and (c) state, “A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender. … Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.”

“If defendant signs the acknowledgment, it waives further service of process. If defendant refuses, some other method of service must be utilized (but defendant is liable for the costs incurred).” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶4:225, p. 4-38 citing Code Civ. Proc., §415.30.)

On July 13, 2018, plaintiff Ko filed a proof of service of summons indicating the summons, complaint and other documents were served on defendant Mackenzie, “By mail and acknowledgment of receipt of service” on July 9, 2018. The Judicial Council form proof of service (POS-010) instructs, at paragraph 5(c)(3), “Attach completed Notice and Acknowledgment of Receipt.)” However, a completed Notice and Acknowledgment of Receipt is not attached. In opposition, defendant Mackenzie submits a declaration confirming, “I neither executed nor returned a copy of the ‘Acknowledgment of Receipt’ I received on July 16, 2018 on the basis that Plaintiff’s attempted service was untimely.”

While Code of Civil Procedure section 415.30 allows plaintiff Ko to serve the summons and complaint by mail along with a notice and acknowledgment of receipt, service is complete only if the defendant executes an acknowledgment of receipt. Here, it is clear that defendant Mackenzie did not execute an acknowledgment of receipt. Consequently, service has not been completed.

Accordingly, defendant Mackenzie’s motion to quash service of summons and complaint is GRANTED.

II. Defendant Mackenzie’s motion to dismiss is DENIED.

Defendant Mackenzie requests, additionally, that the court dismiss plaintiff Ko’s complaint because she failed to comply with California Rules of Court, rule 3.110, subdivision (b) which states, in relevant part, “The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.” However, the remedy is not dismissal. California Rules of Court, rule 3.110, subdivision (f) goes on to state, “If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.” Dismissal is premature.

Accordingly, defendant Mackenzie’s motion to dismiss for failure to timely serve is DENIED.