1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LENKA KOLOMA, a living Woman Case No.: 23-CV-90 JLS (DDL) Upon the Land, one of the sovereign 12 American people, ORDER GRANTING DEFENDANTS’ 13 MOTION TO QUASH SERVICE OF Plaintiff, SUMMONS AND COMPLAINT 14 v. PURSUANT TO FEDERAL RULE 15 OF CIVIL PROCEDURE 12(b)(5) Members of the County of Orange In
16 Individual and Official capacity And as (ECF No. 9) agents: All Offices of Trust dba Karen L. 17 Robinson dba KAREN L. ROBINSON; 18 Todd A. Spitzer dba TODD A. SPITZER; Chad Kajfasz dba CHAD KAJFASZ; 19 Bijan Mazarji dba BIJAN MAZARJI; and 20 David H. Yamasaki dba DAVID H. YAMASAKI, 21 Defendants. 22 23 24 25 Presently before the Court is Defendants Todd A. Spitzer, Chad Kajfasz, and Bijan 26 Mazarji’s (collectively, the “Moving Defendants”) Motion to Quash Service of Summons 27 and Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(5) (“Mot.,” ECF No. 9). 28 Plaintiff Lenka Koloma filed an Opposition to the Motion (“Opp’n,” ECF No. 13), and 1 Moving Defendants filed a Reply in Support of the Motion (“Reply,” ECF No. 16). Having 2 considered the Parties’ arguments and the law, the Court GRANTS Moving Defendants’ 3 Motion. 4 BACKGROUND 5 Plaintiff filed the operative Complaint (“Compl.,” ECF No. 1) on January 17, 2023. 6 On March 13 and 15, 2023, Plaintiff filed several documents purporting to establish proof 7 of service on all named Defendants pursuant to Federal Rule of Civil Procedure 4. See 8 ECF Nos. 3, 4, 5, 6, 7. The proofs of service state that Douglas-William: Hysell served the 9 summons upon all named Defendants via certified mail. See id. Plaintiff describes Mr. 10 Hysell as her “assistant of counsel,” although Mr. Hysell “is not an attorney.” Opp’n at 1. 11 Thereafter, Moving Defendants filed the instant Motion, arguing that they were not served 12 properly under either federal or state law. See generally Memorandum of Points and 13 Authorities in Support of Motion to Quash Service of Summons and Complaint Pursuant 14 to Federal Rule of Civil Procedure 12(b)(5) (“Mem.,” ECF No. 9-1). 15 LEGAL STANDARD 16 “Pursuant to the Federal Rule of Civil Procedure 12(b)(5), a defendant may move to 17 dismiss the action where the plaintiff has failed to effect proper service of process in 18 compliance with the requirements set forth under Federal Rule of Civil Procedure 4 for 19 serving a defendant.” Pathak v. Omaha Steaks Int’l, Inc., No. 10-7054 RSWL RZX, 2011 20 WL 1152656, at *1 (C.D. Cal. Mar. 28, 2011). Service of process on an individual is 21 governed by Federal Rule of Civil Procedure 4(e). Relevant here, Federal Rule of Civil 22 Procedure 4(e) permits service upon an individual by “following state law for serving a 23 summons . . . in the state where the district court is located or where service is made.” Fed. 24 R. Civ. P. 4(e). As the Complaint was filed in the Southern District of California, the 25 summons could have been served by any method provided for by California law. 26 California law, unlike federal law, permits service of process upon an individual by 27 mail. California Code of Civil Procedure § 415.30(a) provides that in order to serve an 28 individual by mail, “[a] copy of the summons and of the complaint shall be mailed (by 1 first-class-mail or airmail, postage prepaid) to the person to be served, together with two 2 copies of the notice and acknowledgment provided for in subdivision (b) and a return 3 envelope, postage prepaid, addressed to the sender.” Service by mail is “deemed complete 4 on the date a written acknowledgment of receipt of summons is executed, if such 5 acknowledgment thereafter is returned to the sender.” Cal. Code Civ. Proc. § 415.30(c). 6 “Once service is challenged, plaintiffs bear the burden of establishing that service 7 was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “So long 8 as a party receives sufficient notice of the complaint, Rule 4 is to be liberally construed to 9 uphold service.” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th 10 Cir. 2009) (internal quotations omitted). 11 DISCUSSION 12 Defendants contend that Plaintiff’s service by mail was ineffective because Plaintiff 13 “has not filed the requisite Acknowledgment of Receipt, nor has she established that a 14 Notice and Acknowledgement of Receipt was ever provided to, signed, or returned by any 15 [Moving Defendant].” Reply at 3. Plaintiff makes no argument to the contrary, instead 16 contending that she does not need to comply with state law, as “all such statutes and codes” 17 were rendered “null and void” when the California Constitution was repealed on November 18 8, 1960. Opp’n at 2. 19 Here, the Court finds that Plaintiff has failed to meet her burden of demonstrating 20 that service was valid under Federal Rule of Civil Procedure 4(e). Plaintiff has not 21 produced any evidence that she provided copies of the notice or acknowledgment of receipt 22 to Moving Defendants, or that Moving Defendants returned to her written 23 acknowledgement of receipt of summons. See Opp’n. Accordingly, service was not 24 effected according to California law. See Cristo v. U.S. Sec. & Exch. Comm’n, No. 25 19CV1910-GPC(MDD), 2020 WL 2735175, at *5 (S.D. Cal. May 26, 2020) (“Under 26 California law, service is valid only if the acknowledgement of receipt is completed and if 27 the acknowledgement is returned to the sender.” (citing Barlow v. Ground, 39 F.3d 231, 28 234 (9th Cir. 1994) (“Although California law does permit service of a summons by mail, 1 such service is valid only if a signed acknowledgment is returned and other requirements 2 are complied with[.]”); Bovier v. Bridgepoint Education/Ashford Univ., Case No.: 3:17-cv- 3 01052-GPC-JMA, 2017 WL 4922978, at *2 (S.D. Cal. Oct. 30, 2017) (“[T]he Court will 4 quash Plaintiff’s service of summons for failure to strictly comply with the notice and 5 acknowledgment and return envelope requirements of Section 415.30.”); Sims v. Cantu, 6 No. 2:16-cv-0204 JAM AC P, 2019 WL 5549895, at *1 (E.D. Cal. Oct. 28, 2019) 7 (“[S]ervice under § 415.30 is not complete until the acknowledgement of receipt is 8 completed, and then only if the acknowledgement is returned to the sender.”)). Moreover, 9 Plaintiff makes no argument that she served the Moving Defendants in some other manner 10 permitted by state or federal law. See Opp’n. 11 Plaintiff’s contention that California law is null and void in toto, and, therefore, she 12 need not comply with it, is frivolous and unsupported by any authority. Contrary to 13 Plaintiff’s argument, courts routinely require strict adherence to California’s rules for 14 service by mail. Supra; see also Elizabeth Thomas v. Cadence Cap. Invs. LLC & William 15 Rothacker, Jr., No. 2:22-CV-07944-SPG-SK, 2022 WL 19076791, at *2 (C.D. Cal. Dec.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LENKA KOLOMA, a living Woman Case No.: 23-CV-90 JLS (DDL) Upon the Land, one of the sovereign 12 American people, ORDER GRANTING DEFENDANTS’ 13 MOTION TO QUASH SERVICE OF Plaintiff, SUMMONS AND COMPLAINT 14 v. PURSUANT TO FEDERAL RULE 15 OF CIVIL PROCEDURE 12(b)(5) Members of the County of Orange In
16 Individual and Official capacity And as (ECF No. 9) agents: All Offices of Trust dba Karen L. 17 Robinson dba KAREN L. ROBINSON; 18 Todd A. Spitzer dba TODD A. SPITZER; Chad Kajfasz dba CHAD KAJFASZ; 19 Bijan Mazarji dba BIJAN MAZARJI; and 20 David H. Yamasaki dba DAVID H. YAMASAKI, 21 Defendants. 22 23 24 25 Presently before the Court is Defendants Todd A. Spitzer, Chad Kajfasz, and Bijan 26 Mazarji’s (collectively, the “Moving Defendants”) Motion to Quash Service of Summons 27 and Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(5) (“Mot.,” ECF No. 9). 28 Plaintiff Lenka Koloma filed an Opposition to the Motion (“Opp’n,” ECF No. 13), and 1 Moving Defendants filed a Reply in Support of the Motion (“Reply,” ECF No. 16). Having 2 considered the Parties’ arguments and the law, the Court GRANTS Moving Defendants’ 3 Motion. 4 BACKGROUND 5 Plaintiff filed the operative Complaint (“Compl.,” ECF No. 1) on January 17, 2023. 6 On March 13 and 15, 2023, Plaintiff filed several documents purporting to establish proof 7 of service on all named Defendants pursuant to Federal Rule of Civil Procedure 4. See 8 ECF Nos. 3, 4, 5, 6, 7. The proofs of service state that Douglas-William: Hysell served the 9 summons upon all named Defendants via certified mail. See id. Plaintiff describes Mr. 10 Hysell as her “assistant of counsel,” although Mr. Hysell “is not an attorney.” Opp’n at 1. 11 Thereafter, Moving Defendants filed the instant Motion, arguing that they were not served 12 properly under either federal or state law. See generally Memorandum of Points and 13 Authorities in Support of Motion to Quash Service of Summons and Complaint Pursuant 14 to Federal Rule of Civil Procedure 12(b)(5) (“Mem.,” ECF No. 9-1). 15 LEGAL STANDARD 16 “Pursuant to the Federal Rule of Civil Procedure 12(b)(5), a defendant may move to 17 dismiss the action where the plaintiff has failed to effect proper service of process in 18 compliance with the requirements set forth under Federal Rule of Civil Procedure 4 for 19 serving a defendant.” Pathak v. Omaha Steaks Int’l, Inc., No. 10-7054 RSWL RZX, 2011 20 WL 1152656, at *1 (C.D. Cal. Mar. 28, 2011). Service of process on an individual is 21 governed by Federal Rule of Civil Procedure 4(e). Relevant here, Federal Rule of Civil 22 Procedure 4(e) permits service upon an individual by “following state law for serving a 23 summons . . . in the state where the district court is located or where service is made.” Fed. 24 R. Civ. P. 4(e). As the Complaint was filed in the Southern District of California, the 25 summons could have been served by any method provided for by California law. 26 California law, unlike federal law, permits service of process upon an individual by 27 mail. California Code of Civil Procedure § 415.30(a) provides that in order to serve an 28 individual by mail, “[a] copy of the summons and of the complaint shall be mailed (by 1 first-class-mail or airmail, postage prepaid) to the person to be served, together with two 2 copies of the notice and acknowledgment provided for in subdivision (b) and a return 3 envelope, postage prepaid, addressed to the sender.” Service by mail is “deemed complete 4 on the date a written acknowledgment of receipt of summons is executed, if such 5 acknowledgment thereafter is returned to the sender.” Cal. Code Civ. Proc. § 415.30(c). 6 “Once service is challenged, plaintiffs bear the burden of establishing that service 7 was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “So long 8 as a party receives sufficient notice of the complaint, Rule 4 is to be liberally construed to 9 uphold service.” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th 10 Cir. 2009) (internal quotations omitted). 11 DISCUSSION 12 Defendants contend that Plaintiff’s service by mail was ineffective because Plaintiff 13 “has not filed the requisite Acknowledgment of Receipt, nor has she established that a 14 Notice and Acknowledgement of Receipt was ever provided to, signed, or returned by any 15 [Moving Defendant].” Reply at 3. Plaintiff makes no argument to the contrary, instead 16 contending that she does not need to comply with state law, as “all such statutes and codes” 17 were rendered “null and void” when the California Constitution was repealed on November 18 8, 1960. Opp’n at 2. 19 Here, the Court finds that Plaintiff has failed to meet her burden of demonstrating 20 that service was valid under Federal Rule of Civil Procedure 4(e). Plaintiff has not 21 produced any evidence that she provided copies of the notice or acknowledgment of receipt 22 to Moving Defendants, or that Moving Defendants returned to her written 23 acknowledgement of receipt of summons. See Opp’n. Accordingly, service was not 24 effected according to California law. See Cristo v. U.S. Sec. & Exch. Comm’n, No. 25 19CV1910-GPC(MDD), 2020 WL 2735175, at *5 (S.D. Cal. May 26, 2020) (“Under 26 California law, service is valid only if the acknowledgement of receipt is completed and if 27 the acknowledgement is returned to the sender.” (citing Barlow v. Ground, 39 F.3d 231, 28 234 (9th Cir. 1994) (“Although California law does permit service of a summons by mail, 1 such service is valid only if a signed acknowledgment is returned and other requirements 2 are complied with[.]”); Bovier v. Bridgepoint Education/Ashford Univ., Case No.: 3:17-cv- 3 01052-GPC-JMA, 2017 WL 4922978, at *2 (S.D. Cal. Oct. 30, 2017) (“[T]he Court will 4 quash Plaintiff’s service of summons for failure to strictly comply with the notice and 5 acknowledgment and return envelope requirements of Section 415.30.”); Sims v. Cantu, 6 No. 2:16-cv-0204 JAM AC P, 2019 WL 5549895, at *1 (E.D. Cal. Oct. 28, 2019) 7 (“[S]ervice under § 415.30 is not complete until the acknowledgement of receipt is 8 completed, and then only if the acknowledgement is returned to the sender.”)). Moreover, 9 Plaintiff makes no argument that she served the Moving Defendants in some other manner 10 permitted by state or federal law. See Opp’n. 11 Plaintiff’s contention that California law is null and void in toto, and, therefore, she 12 need not comply with it, is frivolous and unsupported by any authority. Contrary to 13 Plaintiff’s argument, courts routinely require strict adherence to California’s rules for 14 service by mail. Supra; see also Elizabeth Thomas v. Cadence Cap. Invs. LLC & William 15 Rothacker, Jr., No. 2:22-CV-07944-SPG-SK, 2022 WL 19076791, at *2 (C.D. Cal. Dec. 16 8, 2022) (finding service ineffective where plaintiff’s proofs of service were not 17 accompanied by copies of “acknowledgment of receipt signed by an authorized 18 individual”); Austin v. Lyft, Inc., No. 21-CV-09345-MMC, 2022 WL 395310, at *3 (N.D. 19 Cal. Feb. 9, 2022) (same); Clancy v. Allstate Ins. Co., No. 20-CV-08668-BLF, 2021 WL 20 3861421, at *4 (N.D. Cal. Aug. 30, 2021) (same). Moreover, Federal Rule of Civil 21 Procedure 4(e) permits service pursuant to state law, and Plaintiff makes no argument, nor 22 could she with any credibility, that Federal Rule of Civil Procedure 4(e) is null and void as 23 well. 24 CONCLUSION 25 In light of the foregoing, the Court GRANTS Defendants’ Motion to Quash Service 26 of Summons and Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(5) (ECF 27 No. 9). If Plaintiff wishes to proceed with her claims against the Moving Defendants, she 28 must properly serve them in accordance with the strictures of Federal Rule of Civil 1 || Procedure 4 within 30 days of the date of this Order. See Pathak, 2011 WL 1152656, at 2 (C.D. Cal. Mar. 28, 2011) (‘If the Court determines that the plaintiff has not properly 3 served the defendant in accordance with Federal Rule of Civil Procedure 4, the Court has 4 discretion to... retain the action and quash the ineffective service that has been made on 5 defendant in order to provide the plaintiff with the opportunity to properly serve the 6 ||defendant.”). Failure to properly serve Defendants in compliance with this Order will 7 result in the dismissal without prejudice of Plaintiff's claims against Moving Defendants. 8 IT IS SO ORDERED. 9 Dated: May 4, 2023 jae LL. Li moma 10 on. Janis L. Sammartino 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28