Case Number: BC686343 Hearing Date: March 06, 2018 Dept: 46

Case Number: BC686343
NATIONAL FUNDING INC VS BLACK LABEL COUTURE ET AL

Filing Date: 12/08/2017
Case Type: Breach Contrct/Warnty (Sellr Pltf) (General Jurisdiction)
Status: Pending

Future Hearings

03/06/2018 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Motion to Quash

TENTATIVE RULING

Plaintiff’s Evidentiary Objection is SUSTAINED.

Black Label Couture and Valla Fahimian’s Motions to Quash are GRANTED pursuant to CCP §412.30.

DISCUSSION

Defendants BLC and Fahimian move the court per CCP §412.30 for an order quashing service of the summons and complaint on the grounds that the summons served was defective and the court therefore lacks jurisdiction over them.

CCP § 418.10 reads in relevant part:

“(a) 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.”

CCP § 412.30 reads:

“In an action against a corporation or an unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: “To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure).” If service is also made on such person as an individual, the notice shall also indicate that service is being made on such person as an individual as well as on behalf of the corporation or the unincorporated association.

If such notice does not appear on the copy of the summons served, no default may be taken against such corporation or unincorporated association or against such person individually, as the case may be.”

““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 CA4th 403, 413, 44 CR3d 338, 345 (internal quotes omitted); see Lebel v. Mai (2012) 210 CA4th 1154, 1163, 148 CR3d 892, 900].” Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2016) ¶ 4:421.5. Court findings as to conflicting proof regarding whether a summons and complaint were properly served are upheld if based upon substantial evidence. Stafford v. Mach (1998) 64 C.A.4th 1174, 1182. “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.’” Ellard v. Conway (2001) 94 Cal.App.4th 540, 544. Accord Renoir v. Redstar Corp. (2004) 123 C.A.4th 1145, 1152. A filed proof of service creates a rebuttable presumption that service was proper, if it complies with applicable statutory requirements. Floveyor Internat. v. Sup. Ct. (1997) 59 C.A.4th 789, 795. A Court errs in ruling on the merits of a complaint in deciding a motion to quash a summons made on the ground of defective service. Nelson v. Horvath (1970) 4 C.A.3d 1, 5.

“[A] defendant has an absolute right to demand that process be issued against him in a manner prescribed by law. As a general rule, however, the provisions of the rules governing service of process are to be liberally construed.” Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 C.A.3d 1118, 1122. “The requirements of section 412.30 are mandatory [citation], though those requirements may be satisfied by substantial compliance [citation].” Id. at 1123.

The summons filed with the court does not have any boxes checked under the section for “notice to the person served.” The evidence provided by Plaintiff tells the following story. After filing the complaint, Plaintiff retained JPL Process Service, LLC (hereinafter “JPL”) to serve the Defendants. (Declaration of Jeff Lancaster [hereinafter “Lancaster Dec.”] ¶ 3). The president of JPL aggregated the documents to be served and put them into a single .pdf file, checking the appropriate boxes in the “notice to person served” section on the summons. (Id. ¶ 3 and Exhibits A & B). He then sent these documents to the server who effected service. (Id. ¶¶ 3-4). Defendant contends that he only ever received one summons, a copy of the summons filed with this court, and with none of the boxes checked in the section for “notice to the person served.” (Declaration of Valla Fahimian Exhibit 1).

The evidence of the two parties is not necessarily contradictory. Plaintiff does not identify the manner in which the .pdf document generated by JPL was “sent” to the process server; presumably it was by email, subjecting the document to all kinds of potential electronic glitches. JPL’s President certainly cannot authenticate the documents provided as the same documents that were served, for the simple reason that he did not effectuate the service. The evidence provided is sufficient to absolve Plaintiff from any accusation of poor diligence, but it is not sufficient to prove that the summons provided to Defendants was actually compliant.

Nor can a completely blank summons constitute substantial compliance. “[W]e know of [] only one case in which a defective summons has been saved by a square holding of substantial compliance. In Cory v. Crocker National Bank (1981) 123 Cal.App.3d 665, 177 Cal.Rptr. 150, the plaintiff attempted to serve a bank by delivering to one of its officers a summons on which the relevant space had been only partially completed… The court concluded that this requirement was satisfied, based primarily if not entirely on two considerations: (1) the relevant section of the summons had been partially completed, and in a way that could alert the recipient—by consulting the cited statute—that he was served on behalf of his corporate principal; and (2) by stamping the summons with his employer’s seal, as it were, he or another employee vicariously admitted that service had been made on the employer’s behalf, and not the recipient’s own. (See id. at pp. 670–671, 177 Cal.Rptr. 150.).” Carol Gilbert, Inc. v. Haller (2009) 179 C.A.4th 852, 862-863.

“Whatever the soundness of this reasoning, it cannot produce the same result here, where these factors have no parallels.” Id. at 863. The evidence indicates that the relevant section of the summons as actually received was not completed at all, nor is there some external sign affixed to the summons itself indicating Defendants’ understanding of the service. The question would be different were Defendants seeking a total dismissal (see Id. at 865); since they are not, re-service is necessary.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge