Case Name: People of the State of California, ex rel., et al. v. Coachella Valley Church, et al.
Case No.: 17CV320176

I. Background

This case brought by the People of the State of California, the City Attorney of San Jose, and the City of San Jose (“the City”) (collectively, “Plaintiffs”) against Coachella Valley Church (“Coachella”), Revere Group, LLC., Tsars, LLC., Viktoria Foxx (“Foxx”), Sacha Nemcov (“Nemcov”), Esther Bright, Andrew Prescott, and Jennifer Prescott (collectively, “Defendants”) arises from the fact Defendants own, manage, or allow to continue, a marijuana business.

According to the allegations of the Complaint, Coachella is a marijuana distribution business that has operated at 2142 The Alameda in San Jose, California (“the Property”) since May 2017. The other defendants are all in some way related to the ownership or operation of Coachella. Foxx and Nemcov are owners, operators, or managers of the Property.

Defendants allowed or caused the Property to be occupied, used, or maintained as a marijuana business in violation of the San Jose Municipal Code. Titles 6 and 20 of the San Jose Municipal Code regulate the distribution of marijuana and operation of any business that makes marijuana available within San Jose. Title 6 prohibits all marijuana businesses in San Jose unless and until the business files a registration form, pays certain fees, and receives a notice of completed registration. In addition, Title 20 requires any medical marijuana collective within the San Jose to obtain a zoning code verification certificate and complies with other regulations. The City has not issued a notice of completed registration or zoning code verification certificate to Coachella. Moreover, Title 20 specifically prohibits distribution of marijuana in a commercial zoning district. Coachella is located in a commercial zoning district. Thus, Coachella is in violation of Titles 6 and 20. Section 6.88.820.A of the San Jose Municipal Code provides that each and every violation of the San Jose Municipal Code shall constitute a public nuisance per se. Therefore, Coachella is a public nuisance.

Plaintiffs assert causes of action against Defendants for: (1) Public Nuisance Based Upon Distribution of Marijuana; (2) Public Nuisance and Nuisance Per Se Based Upon Violations of the San Jose Municipal Code; and (3) Unlawful and Unfair Business Practices.

Currently before the Court is a motion to quash service of summons by Foxx and Nemcov, which the City opposes.

II. Request for Judicial Notice

In support of its opposition to the motion, the City filed a request for judicial notice of (1) a grant deed transferring the Property from Nemcov as Trustee of the Parthenon Trust to himself and Foxx as tenants in common; and (2) a form requesting address information sent by the City to the U.S. Postal Service.

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364.) Matters subject to judicial notice are listed in Evidence Code sections 451 and 452. (Id. at p. 364.) A precondition to judicial notice is that the matter to be noticed is relevant to a material issue before the Court. (People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

The City argues that both documents are subject to judicial notice pursuant to Evidence Code section 452, subdivision (c), which authorizes judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”

“Pursuant to [Evidence Code section 452, subdivisions (c) and (h)] courts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 disapproved of on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.) The grant deed is a recorded real property record, and therefore is a proper subject for judicial notice. It shows that Nemcov and Foxx owned the Property as tenants in common, and thus is relevant to an issue in the case.

The City next argues that two forms it sent to the U.S. Postal Service are proper subjects for judicial notice because they “bear the seal of the United States Postal Office” and are therefore “a [sic] certified copy [sic] of an official act of the executive department of the United States.” (RJN, p. 3:1-3.) For context, the forms have several boxes which are blank, and a single box that is checked next to the phrase “MOVED, LEFT NO FORWARDING ADDRESS.” There is a stamp nearby which reads “USPS” and a name which is illegible. The City does not cite, and the Court is not aware of, any authority stating a stamp necessarily converts an ordinary document into an official act of an executive department under Evidence Code section 452. Thus, the two forms are not proper subjects for judicial notice.

For the foregoing reasons, the City’s request for judicial notice is GRANTED as to the grant deed and DENIED as to the two forms sent to the U.S. Postal Service.

III. Evidentiary Objections

Foxx and Nemcov filed written objections to certain evidence presented by the City in support of their opposition, particularly the declaration of due diligence by Felipe Flores (“Flores”) and two investigations reports linking Foxx and Nemcov to the Property. The Court will treat the challenged evidence as admissible for purposes herein because the outcome of the motion would be the same irrespective of the admissibility of such evidence.

IV. Discussion

Nemcov and Foxx assert they were not properly served with the summons and complaint, and Plaintiffs have the burden of providing evidence of proper service. Nemcov and Foxx do not identify a specific procedural defect with service in the motion, but state they were not “effectively served with the documents, and found out that Plaintiffs were claiming they were served only when made aware of the Court-filed Proof of Service.” (MTQ, p. 3:16-17.)

Proper service of the summons and complaint in compliance with the Code of Civil Procedure is a prerequisite to acquiring personal jurisdiction over a defendant. (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150.) When service of summons is defective, a defendant may file a motion to quash service on the basis that the court lacks personal jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) Once a defendant files a motion to quash service, the burden is on the plaintiff to establish jurisdiction, by a preponderance of the evidence, by proving the validity of the service. (Lebel v Mai (2012) 210 Cal App.4th 1154, 1160; Boliah v. Super. Ct. (1999) 74 Cal.App.4th 984, 991; Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444.)

The Code of Civil Procedure permits several different methods of proper service. Section 415.10 states that “a summons may be served by personal delivery of a copy of the summons and complaint to the person to be served.” (Code Civ. Proc., § 415.10.) However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” section 415.20, subdivision (b) authorizes substitute service on individuals in lieu of personal delivery. (Code Civ. Proc., § 415.20, subd., (b); Ellard v. Conway (2001) 94 Cal.App.4th 540, 545.)

Here, the City presents several declarations as evidence of the actions it took to properly service Foxx and Nemcov. First, there is a declaration by Brandi Lecomte stating she contacted a process server called Quest Services to investigate potential addresses connected to Foxx and Nemcov. Attached to this declaration are two “investigations reports” which list the Property as Foxx and Nemcov’s home address. The City also presents a declaration by Sandy Linerud stating she received two personal checks from Foxx. Attached to the declaration are photocopies of the checks, one of which lists Foxx’s address as the Property. Additionally, the City presents a declaration by Barry Witt, that states in a previous court case Nemcov listed his address as the Property. Finally, the City presents a declaration of diligence by Flores stating that he went to the Property to properly serve Foxx and Nemcov, and describing what happened there.

The central issue here is whether Flores’ visit to the Property—as described in the declaration of due diligence—was sufficient reasonable diligence to permit substitute service. Substitute service on an individual must be preceded by a reasonably diligent attempt at personal service. (American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389 (American Exp. Centurion Bank) ; see Code Civ. Proc., § 415.20, subd. (b) [“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered”].) “[T]he burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the individual defendant. [Citations.]” (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 389.) “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘ “reasonable diligence.” ’ ” (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 389; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185; Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1391–1392.) “[E]ach case must be judged upon its own facts. ‘No single formula nor mode of search can be said to constitute reasonable diligence in every case.’ [Citation.] ” (Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801.)

The evidence presented shows only a single attempt to personally serve Nemcov and Foxx before resorting to substitute service during that same visit. As Nemcov and Foxx correctly argue in reply, the law ordinarily requires two or three attempts to show that personal service cannot be achieved despite reasonable diligence. (See, e.g., American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 389.)

The City cites Falco v. Nissan North America Inc. (C.D. Cal. 2013) 987 F.Supp.2d 1071 (Falco) for the propositions that reasonable diligence is “fact- and case-specific” (Opp., p. 5:17), and multiple attempts are not required where they would be “ ‘futile’ or otherwise unreasonable” (Opp., p. 6:23). While the City seems to cite Falco for these general propositions, the Court finds it helpful to talk about what appears to be an implicit factual comparison to Falco.

In Falco, a federal district court ruled that putative class-action plaintiffs who made one attempt to personally serve the chairperson of a large corporation were reasonably diligent. (Falco, supra, 987 F.Supp.2d at p. 1080.) The court stated that there is no “hard and fast rule requiring that Plaintiffs make [any] number of attempts at personal service.” (Falco, supra, 987 F. Supp. 2d at p. 1080.) The court concluded, “[f]rom a practical perspective, considering the relatively low likelihood that the chairperson of a corporation as large as Nissan–America would be made accessible to a process server, multiple attempts at personal service would likely have been futile.” (Ibid.)

The City argues that the instant facts are similar to the ones in Falco in that multiple attempts would have been futile or otherwise unreasonable. Thus, the City was reasonably diligent despite making only a single attempt at personal service. The City’s argument for why additional efforts would have been futile or unreasonable here is “the first such attempt resulted in a physical assault.” (Opp., p. 6:27.)

For context and to properly assess the City’s argument, it is necessary to summarize at length the facts as they appear in the declaration of due diligence. According to the declaration, Flores went to the Property to serve Foxx and Nemcov among others. He found two people inside. He asked them if either Foxx or Nemcov was present. The two people denied knowing Foxx or Nemcov. Flores asked them who was in charge. One of the two stated no one was in charge, and they were receptionists for the multiple businesses at the Property. One of the receptionists summoned someone to assist Flores. A third person appeared from upstairs, identified as “John Doe” in the proofs of service. Flores explained to John Doe he was there to serve court documents on behalf of the City. He listed the parties he was there to serve, including Foxx, Nemcov, and Coachella. John Doe denied knowing any of these parties. Flores believed John Doe was in charge because the two receptionists deferred to him. Flores attempted to give the documents to John Doe. Joe Doe refused to accept the papers and ordered Flores to leave. Flores then dropped the papers at John Doe’s feet. John Doe ordered Flores to take them back, started pushing the papers away with his foot, and threatened to call the police. John Doe stated he would tell the police Flores threw the papers at him, and asked the receptionists if they had seen that happen. They agreed they had seen Flores throw the papers at John Doe. Flores stated he would wait for the police, and he called the police himself to request a civil standby.

While Flores was waiting outside the Property one of the receptionists deposited the papers outside. An unknown person described as a customer saw the papers on the sidewalk, and asked Flores if they belonged to him. Flores said they belonged inside. The customer picked the papers up and carried them inside. A few minutes afterward he exited the Property with the papers and dropped them on the sidewalk. The customer stated they did not belong to the parties in the business, and left the area. Later the same customer returned and threw ice water on Flores as he stood outside the front of the business. Subsequently the two receptionists came outside and taunted Flores about the ice water.

With the above summary in mind, the City’s position is not well-taken because it misconstrues the evidence. Specifically the City misconstrues who assaulted Flores, where the assault happened, and when it happened. The City frames its argument as if Defendants’ agent or associate attacked Flores. Actually, it was a customer who threw cold water on Flores. There is no evidence the attacker was an employee or agent of Defendants. There is no evidence of any relationship between the person who threw the water and Defendants, beyond perhaps merchant and customer. Turning to when and where the assault occurred, it did not happen while Flores was trying to serve the papers or immediately thereafter inside the Property, but some unknown time afterward and outside the Property.

In addition, the City asserts that it was reasonable for the process server to resort to substitute service “following his encounter with Defendant’s [sic] associates at Subject Property.” (Opp., pp. 6:28-7:1.) However, there is no basis for concluding that Flores resorted to substitute service in the face of hostility. According to the declaration of due diligence as soon as John Doe stated he did not know Foxx or Nemcov, Flores tried to hand the papers to him as the person in charge of the business. At that point there had not been any aggression. It was only subsequent to the attempted substitute service that Joe Doe threatened to call the police, and later still when the unknown customer threw water at Flores. Thus, expediency, not a negative interaction with Defendants’ associates, caused Flores to attempt substitute service.

Finally, the evidence does not show that a subsequent attempt at personal service was likely to result in danger to Flores or be futile. With respect to the danger of another assault, the person who threw the water was supposedly a customer. There is no reason to assume he would necessarily be present during future visits to the Property. As to hostility from the employees, businesses often employ different people to do the same job depending on the time of day and day of the week. If the City attempts to properly serve Foxx and Nemcov again at a different time or on a different day of the week it may discover different people are present at the Property.

In sum, the City has not shown on these particular facts that personal service cannot be achieved with reasonable diligence. Thus, the Court will not deviate from the general rule that a plaintiff must make two or three attempts at personal service before resorting to substitute service.

Accordingly, the motion to quash service of process is GRANTED.