RULING OF JUDGE CRAIG D. KARLAN, L.A. SUPERIOR COURT DEPT. WEST N (Santa Monica) October 6, 2015, Case No.: SC123511
The motion Cross-Defendants Anoushiravan Javaheri, Behiyeh Javaheri, Carmelita Palms, LLC, and Seeun Javaheri to quash service of the summons is DENIED.
Defendants/Cross-Defendants Erin Ferucci and E. Ferucci Designs. LLC. to give notice.
Personal delivery guarantees actual notice of the pendency of a legal action and thus presents the ideal method of service. Nevertheless. less rigorous notice procedures are also constitutionally acceptable. One such procedure, set forth in Code of Civil Procedure section 415.20, subdivision (b ), provides that, in lieu of presenting a copy of the summons and of the complaint to a person in that person’s presence, the process server may leave the copies for the person 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. The person to be served must be a natural person as described in Code of Civil Procedure sections 416.60 to 416.90. The process server must leave the copies in the presence of a competent member of the household or a person apparently in charge of the office, place of business or usual mailing address of the person to be served. The person with whom the copies are left must be at least 18 years of age and the process server must inform him or her of the contents of the copies. Finally, the process server must mail, by first class mail with postage prepaid, a second set of copies to the person to be served at the place where the first set was left. Service accomplished by this method is deemed complete on the 10th day after the mailing.
This method of substitute service is available only after reasonably diligent efforts to serve by personal delivery have failed. (Code Civ. Proc.,§ 415.20, subd. (b).) Ordinarily, two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made, especially if the process server’s attempts are reasonably calculated to provide the person to be served with actual notice of the action. (Espindola v. Nunez (1988) 199 Cal.App.3d 1389. 1392 [service proper where process server attempted three times to serve defendant personally at his home and then. on fourth try, left copies with defendant’s wife, a co-defendant in action].) If defendant challenges this method of service, the burden is on plaintiff to show that reasonable attempts were made to serve defendant personally before resorting to substitute service. No matter how logical a method of service might seem. and even if the summons and complaint makes its way to the defendant, if service is not within the statutory scheme for service, it is ineffective. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.) 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. (See Code Civ. Proc.,§ 418.10, subd. (a)(l).) A defendant is under no duty to respond in any way to a defectively served summons. Complainants have the initial burden to evidence valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Flovevor Internat. v. Superior Court (1997) 59 Cal. App. 4th 789, 794.)
However, the statutory requirements of service are construed to uphold jurisdiction, rather than defeat it. (See Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778.) As long as the defendant receives actual notice of the lawsuit, substantial compliance with the Code provisions governing service of summons will generally be held sufficient. (Ibid.) Only a complete failure to comply with statutory requirements establishes a lack of proper service. (See Dill v. Berquist Const. Co .. Inc. (1994) 24 Cal.App.4th 1426. 1439. fn. 12.) A valid proof of service gives rise to a rebuttable presumption of valid service. (Id. at pp. 1441-1442.)
Code of Civil Procedure section 415 .20, subdivision (b ), provides for a broader scope of service than that permitted under subdivision (a). Under subdivision (b). service may be made at three locations in the presence of .. a person apparently in charge” of the defendant’s (l) .. office.” (2) “place of business,” or (3) “usual mailing address.” This is significantly different than subdivision (a) which permits service only on .. the person” who is “apparently in charge” of the defendant’s office. In other words. subdivision (b) permits service on not only a person apparently in charge of the office. but on a person apparently in charge of the “place of business” or “usual mailing address.” The purpose of section 4 l 5.20(b) is to permit service to be completed upon a good-faith attempt at physical service on a responsible person, plus actual notification of the action by mailing the summons and complaint to the appropriate party.
A defendant will not be permitted to defeat service by rendering physical service impossible. In In re Ball (1934) 2 Cal.App.2d 578, it was held that effective service was made when the process server informed the defendant that he had ” ‘another one of those things for you,’ “and when the defendant moved away, threw the summons and complaint so that it fell a few feet away from the defendant. ··we take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted. service cannot be avoided by denying service and moving away without consenting to take the document in hand.” (Id. at p. 579.)
In Ludka v. Memory Magnetics International ( 1972) 25 Cal.App.3d 316, a default judgment was upheld against the argument that it should have been set aside because service of process was faulty. The process server had entered the defendant’s offices and, unable to obtain access to a corporate officer. threw the papers on a coffee table saying “You’ re served.” Copies of the summons and complaint were thereafter sent to the defendant. The defendant argued that service was improper because the receptionist, upon whom service ostensibly was made, was not then his secretary nor an agent for service of process on the corporation, and because a third party in the reception area, declaring that service had not been made. threw the papers into the wastebasket. It was held that the service of process “amply complied” with section 415.20 and that the gratuitous actions of the third party did not render service ineffective. (Id. at pp. 320-321.) Moreover, in Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009 the process server provided actual notice of the documents to the person apparently in charge of the defendant’s office and, prevented by that person from leaving them inside the office, left them on the other side of the office door. No more was required to effectuate service other than to mail copies of the summons and complaint.
Here Cross-Defendants Anoushiravan Javaheri, Behiyeh Javaheri, Carmelita Palms. LLC. and Seeun Javaheri (collectively. “Cross-Defendants”) now move to quash service of the Defendant/Cross-Complainant Erin Ferucci and E. Ferucci Designs, LLC’s (collectively, ”F erucci “) cross-complaint summons. The Court finds service of the cross-complaint summons to be proper.
According to the Declaration of Jan B. Tucker (“Tucker”), Ferruci’s process server, the building manager at Kourosh Javaheri’s (“Javaheri .. ) residence, Sherrie Khosrovani (”Khosrovani”), informed Tucker that .. she had to get the permission of the residents [Javaheri] to allow me to go to their apartment.” (Tucker Decl., 5.) After Khosrovani contacted Javaheri for permission, Tucker concluded that “Javaheri intended to attempt to hide from service behind his refusal of permission to Ms. Khosrovan [sic] as ‘gatekeeper’ of the building to allow me to go his apartment to effect service …. Therefore. I gave the summons, complaint. and accompanying documents to Ms. Khosrovan [sic] and she willingly accepted them on behalf of the defendants.” (Tucker Decl., 8.)
In reply, Javaheri submits a declaration from Khosrovani in which she states “Javaheri did not instruct me to deny Mr. Tucker access to Mr. Javaheri’s unit” and she “did not restrict Mr. Tucker from proceeding to Mr. Javaheri’s unit.” (Khosrovani Decl., 2, 4.) While Khosrovani states she “did not restrict” Tucker from proceeding, absent from her declaration is an affirmative statement that she told Tucker he may proceed to Javaheri’s unit. Without affirmative permission, Tucker reasonably concluded that he could not proceed to the unit to attempt to personally serve Cross-Defendants. Moreover, Khosrovani states that she informed Javaheri, not Tucker, that she “would be allowing Mr. Tucker to proceed to Mr. Javaheri’s unit;” Khosrovani does not state whether she informed Tucker that Javaheri “was not home.” (Khosrovani Decl., 2.) Without this information communicated to Tucker, he reasonably concluded that Khosrovani acted as a gatekeeper and additional attempts to personally serve Javaheri would be futile. (See Bein v. Brechtel-Jochim Group. Inc. (1992) 6 Cal.App.4th 1387, 1393 [“The gate guard in this case must be considered a competent member of the household” and the person apparently in charge. Appellants authorized the guard to control access to them and their residence. We therefore assume the relationship between appellants and the guard ensures delivery of process.”] ibid. [“Litigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access”].) Furthermore, Khosrovani’s declaration does not state whether she contacted any of the other Cross-Defendants to determine if they were in the unit and whether they would allow Tucker access to the unit.
Therefore. the motion to quash service of the summons is DENIED.