Case Number: 18TCV04068 Hearing Date: February 05, 2019 Dept: 20

Tentative Ruling

Judge Dalila C. Lyons

Department 20

Hearing Date: Tuesday, February 05, 2019

Case Name: The People of the State of California, et al. v. MSquare Group LLC, et al.

Case No.: 18STCV04068

Motion: Quash Service of Summons and Complaint on MSquare Group LLC

Notice: OK

Ruling: Defendant MSquare Group LLC’s motion to quash service of the summons and complaint is DENIED.

Defendant MSquare Group LLC’s Response to the complaint must be filed within 20 days of this ruling.

Moving party to give notice.

BACKGROUND

On November 7, 2018, Plaintiffs The People of the State of California, by and through Mary C. Wickham, County Counsel for the County of Los Angeles, (the “People”) and County of Los Angeles (the “County”) (collectively, “Plaintiffs”) filed the Complaint to abate violations of the Los Angeles County Code and enjoin unlawful business practices and for injunctive, monetary, and other equitable relief against Defendants MSquare Group LLC (“MSquare”), Cannabis on Demand (“Cannabis”) (collectively, “Defendants”), and Does 1 through 10 for (1) violation of County Code Sections 22.66.010, 22.66.020, and 22.66.030; (2) violation of County Code Section 1.23.050; (3) violation of Business and Professions Code Section 17200.

The Complaint alleges that MSquare holds title to 1217 Torrance Blvd., Torrance, CA 90502, Assessor’s Parcel Number 7350-011-058 (the “Subject Property”). It is alleged that Cannabis and Does 1 through 10 have established, maintained, and/or are operating a cannabis business or activity at the Subject Property.

On May 29, 2018, the County learned that Cannabis was illegally operating a cannabis business at the Subject Property. On June 4, 2018, the Los Angeles County Sheriff’s Department conducted internet research and observed that Cannabis advertised on the website, Weedmaps.com, an internet resource for cannabis users to locate and review cannabis co-operatives, storefronts, medical doctors, and delivery services, and that it was open and operating daily from 9:00 a.m. to 2:00 a.m. The address listed on Weedmaps.com was the same address as the Subject Property. On June 12, 2018, the Sheriff served a search warrant at the Subject property. It is alleged that during the search, among other things, the Sheriff observed and recovered green leafy substance from the sales room, which on June 19, 2018, was confirmed to contain cannabis.

MSquare (“Defendant”) moves for an order quashing service of the Summons and Complaint on the grounds that its agent of service of process, Steve Fio Saechao (“Saechao”), was not actually served with process. Defendant asserts that Saechao was not present at the location on the date of the purported personal service.

Plaintiffs argue that the motion to quash service of summons should be denied because valid service was made by Plaintiffs’ registered process server, and Defendant’s self-serving declaration fails to rebut the presumption of valid service under Evidence Code section 647. Additionally, Plaintiffs argue that service by substitute service was effected.

ANALYSIS

I. Quash Service of Summons and Complaint

An individual defendant may be served via “substitute service,” which is accomplished by “leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” CCP § 415.20(b). However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. Id.; Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801. Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “‘reasonable diligence.’” Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2010) ¶ 4:196.

CCP Section 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. Roy v. Superior Court (2005) 127 Cal.App.4th 337, 342. Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710. A proof of service containing a declaration from a registered process server invokes a rebuttable presumption of valid service that must be overcome by the party seeking a defeat service of process. American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Cal. Evid. Code § 647.

Here, the proof of service on MSquare filed on November 27, 2018 indicates that MSquare was served on November 15, 2018 at 8851 Garden Grove Bl. #103B, Garden Grove, CA 92844. The documents were purportedly left in the presence of Steve Fio Saechao, described as a 34 years old Asian male, 5’5”, 130 pounds, black hair. The proof of service indicates the process server informed Saechao of the general nature of the papers served. A copy of the papers were then mailed to the same address by first class mail, postage prepaid on November 15, 2018. The attached affidavit of the process server also indicates that substituted service was made after two prior unsuccessful attempts to serve MSquare on November 9, 2018 and November 13, 2018. Process was purportedly served by a Jay Jakar (“Jakar”).

In support of its argument that service was properly effectuated, Jakar, a California registered process server, attests that on November 15, 2018, at 1:00 p.m., he personally entered the address of 8851 Garden Grove Blvd., No. 103B, Garden Grove, California 92844. Declaration of Jay Jakar (“Jakar Decl.”), ¶¶ 1-4. Once inside, Jakar observed an Asian male seated at a table who rose as Jakar approached. Id. ¶ 4. Jakar asked the male if he was Steve Fio Saechao. Id. The male answered in the affirmative, and Jakar proceeded to serve the male who identified himself as Saechao with the documents. Id. Subsequently, Jakar mailed by first-class mail, postage prepaid, a copy of the Summons and complaint to the same address. Id., ¶ 5. Thus, this is sufficient for Plaintiffs to meet their burden of proving that MSquare was properly served by both personal service and substitute service.

In rebuttal, Saechao provides his sworn declaration dated January 2, 2019. Saechao attests that he is the agent for service of process for MSquare, that he was not at 8851 Garden Grove Blvd. #103B, Garden Grove, CA on November 15, 2018, and that he was not served with process in this matter. Declaration of Steve Fio Saechao (“Saechao Decl.”), ¶¶ 1-2. Therefore, Defendant argues, the proof of service is false, and MSquare was not properly served with process.

As mentioned previously, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption of valid service that must be overcome by the party seeking a defeat service of process. American Express Centurion Bank 199 Cal.App.4th at 390; see also Cal. Evid. Code § 647.

Here, the Court finds that Defendant has not sufficiently rebutted the presumption of valid service. Saechao provides no explanation how he received the Summons and complaint, other than that he “learned of this lawsuit through a third party.” Saechao Decl., ¶ 2. There is also no explanation as to why an individual present at 8851 Garden Grove Bl. #103B, Garden Grove, CA 92844 accepted service on Defendant’s behalf after confirming his identity as Saechao. The Court finds Saechao’s declaration is self-serving, and the Court declines to consider it. A court is not required to accept a self-serving declaration that purports to contradict the process server’s declaration. American Express Centurion Bank (2011) 199 Cal.App.4th 383, 390; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 751.

Furthermore, Defendant fails to adequately rebut evidence that service was properly effectuated by substitute service. MSquare’s motion is premised entirely on its argument that Saechao was not personally served. However, service can be effectuated by substitute service, which the evidence and the proof of service filed by Plaintiffs show was completed by Plaintiffs here. See CCP § 415.20(b); Jakar Decl., ¶¶ 4-5.

Accordingly, Defendant MSquare’s motion to quash service of summons and complaint is DENIED.