Case Name:   Sophie (Chin-Li) Mou v. Mission Community College, et al.

Case No.:       1-13-CV-242029

Defendants Penny Johnson, Char Perlas, Charity Bowles, Artie Lashbrook, Nicole Pinto, Simon Shen, Marsha Chan, Rick Hobbs, Kathy Fitzgerald, Sarah Whylly, Jerry Chapman, Theresa Lawhead (collectively, the “Individual Defendants”) and West Valley-Mission Community College District (“Mission”) move to quash the service of the summons and first amended complaint (“FAC”) of plaintiff Sophie (Chin-Li) Mou (“Mou”) on the Individual Defendants.[1]

The Individual Defendants contend that Mou’s process server failed to personally serve them with the summons and the FAC as stated in the proofs of service. On June 5, 2014, Mou filed substantially identical proofs of service for each of the defendants, indicating that they had been personally served at 3000 Mission College Blvd., Santa Clara, CA. (See Shupe Decl., Ex. B.)  The proofs of service, however, do not comply with Code of Civil Procedure section 417.10 because they do not indicate the time service was purportedly made. Therefore, no presumption of service arises from these proofs of service. (See Dill v. Berquist Const. Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

In addition, the Individual Defendants submit evidence indicating that they were never personally served with the summons and FAC.  In particular, they rely on the declaration of Linda Angelotti, an assistant to the President of Mission.  Ms. Angelotti declares that: (1) on June 5, 2014, a man dropped a pile of legal documents on her desk and left (Angelotti Decl., p. 2:5-13);  (2) she is not authorized to accept service of summons and complaints for Mission’s employees or students (Angelotti Decl., pp. 1:28, 2:1-2); (3) none of the Individual Defendants reside at Mission as it has no dorms or housing on campus (Angelotti Decl., p. 2:14-16); (4) she has never contacted the Individual Defendants to make any of them aware of the action (Angelotti Decl., p. 2:17-18); and (5) none of the Individual Defendants have ever indicated that they were aware of the action (Angelotti Decl., p. 2:18-20).

Accordingly, the Individual Defendants put forward evidence indicating that the summons and FAC were not handed to them and Ms. Angelotti is not authorized to accept service on their behalf. (See American Express Centurion Bank v. Zara (2011)   199 Cal.App.4th 383, 389 [“If the complaint and summons were personally delivered, i.e., handed to, defendant then he could be said to have been ‘personally served.’ A defendant may also be ‘personally’ served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant.”].)  In opposition, Mou submits no evidence indicating that the Individual Defendants were personally served.  Thus, Mou fails to meet her burden to prove facts indicating that the Individual Defendants were properly served. (See Summers v. McClanahan (2006)      140 Cal.App.4th 403, 413.)

Finally, Mou argues that the service of the summons and FAC to each defendant substantially complies with the service of process statutes.  However, Mou puts forward no evidence indicating that the Individual Defendants received actual notice of the lawsuit. (See Dill, supra, 24 Cal.App.4th at p. 1436 [substantial compliance applicable only if defendant receives actual notice of lawsuit].)  Accordingly, Mou does not meet her burden to demonstrate that she substantially complied with the service of process statutes.

In sum, the proofs of service submitted by Mou are not code-compliant and Mou fails to otherwise prove the facts requisite to an effective service. Accordingly, the motion to quash the service of the summons and FAC is GRANTED.