Pagtakhan v. Alexander

Filed 11/24/09 Pagtakhan v. Alexander CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff and appellant Marlon Estacio Pagtakhan filed a complaint naming various individuals, including respondent Victor Ceron. Ceron brought a motion to quash service, which the trial court granted. Pagtakhan appeals. We affirm.

BACKGROUND

On December 9, 2008, acting in propria persona, Pagtakhan filed his complaint. It named five individuals, alleged eighteen causes of action, and sought special, general, and punitive damages. The specific causes of action and the facts underlying them are not germane to the single issue before us, and will not be set forth in detail. Suffice to say that the claims essentially all stem from activity at a wrestling camp held at All Pro Wrestling (APW) gym in Hayward, and what ensued thereafter. As Pagtakhan distills the case in his brief, he ultimately [became] incarcerated and fac[ed] fabricated charges as a result of the said causes of action, which had their genesis at the All Pro Wrestling gym in Hayward, Ca., where many of the causes of action took place. Pagtakhans brief further represents, without factual support, that Ceron was a student, as well as a paid trainer/wrestler for the organization of which is owned and managed by Roland Alexander.

On January 23, 2009, plaintiff filed a proof of service, indicating that Ceron was served by substituted service . . . on Jan 03, 2009 . . . by leaving the copies with or in the presence of: CHRIS CLIFTON, EVENT MANAGER. The proof of service was accompanied by a declaration of due diligence.

On January 30, 2009, Ceron filed a motion to quash service of summons. Pagtakhan filed opposition, and Ceron a reply. The motion was denied without prejudice for failure to have a supporting declaration.

On March 10, 2009, Ceron filed a second motion to quash, accompanied by Cerons declaration and a memorandum of points and authorities. The motion was simple and straightforward: that the purported basis of jurisdiction over Ceronsubstituted servicewas improper. Pagtakhan filed opposition, some of which incorporated his earlier opposition, and Ceron filed a reply. The matter was set for hearing before the Honorable Joseph C. Scott, who issued a tentative ruling granting the motion, which was not contested by Pagtakhan. The tentative ruling was adopted, and an order entered granting the motion to quash. Such order is appealable (Code Civ. Proc.,  904.1, subd. (a)(3)), and on April 16, 2009 Pagtakhan filed a notice of appeal.[1]

DISCUSSION

Pagtakhan sets forth various arguments why the order should be reversed. The first, and fundamental, argument is that substituted service was properly completed. We disagree.

A. Pagtakhan Has Not Demonstrated Substituted Service

Substituted service of summons and complaint is governed by Code of Civil Procedure section 415.20. Rather than quote this lengthy section in its entirety, we refer to the leading practice treatise, where the authors state that the procedure for substitute service on an individual requires a three-step process: (1) Leave a copy of the summons and complaint either at the individuals . . . dwelling house (usual place of abode), . . . usual place of business, or . . . usual mailing address . . .; (2) Leave it with a competent member of the household or person apparently in charge of his office or place of business, at least 18 years old, who must be told what the papers are; and (3) Thereafter, mail other copies of the summons and complaint (first class mail, postage prepaid) to the defendant at the place where the copies were left. [Code Civ. Proc., 415.20, subd. (b).]. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009)  4:206, pp. 4-31-4-32.)

These, then, are the three requirements for proper substituted service, with this additional proviso from the Judicial Council Comment to Code of Civil Procedure section 415.20: the copy must be left with a person closely connected with the defendant.

As germane to the issue here, When a defendant challenges the courts personal jurisdiction on the ground of improper service of process, the burden is on the plaintiff to prove . . . the facts requisite to an effective service.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) This, Pagtakhan has failed to do.

The claimed due diligence on which Pagtakhan relies provides in its complete substance as follows:

Day Date Time Location Results

Wed 12/31/08 10:53am Business NO ANSWER, NO ONE HERE Attempt made by: KRIS W. VORSATZ, Registration #1160 Santa Clara County. Attempt at 21063 Cabot Blvd. #1 HAYWARD, CA. 94545.

Thu 01/01/09 7:11pm Business NO ANSWER, NO ONE HERE Attempt made by KRIS W. VORSATZ. Attempt at 21063 Cabot Blvd. #1 HAYWARD, CA. 94545

Fri 01/02/09 5:12pm Business NO ANSWER, NO ONE HERE Attempt made by KRIS W. VORSATZ. Attempt at 21063 Cabot Blvd. #1 HAYWARD, CA. 94545

Sat 01/03/09 6:55pm Business Substituted Service on: Victor Cirone Business 21063 CABOT BLVD. #1, HAYWARD, CA. 94545 by Serving: CHRIS CLIFTON, EVENT MANAGER a Person in charge at least 18 years of age apparently in charge of the office or usual place of business of the person served. Served by KRIS W. VORSATZ

Sat 01/03/09 Mailed copy of Documents to: Victor Cirone

Such proof falls short in several particulars.

To begin with, before substituted service can be effected, there must first be an attempt at personal service, and there must be a good faith showing that the summons cannot with reasonable diligence be personally served. (Code Civ. Proc., 415.20, subd. (b).) As Witkin states the rule: Thus, as to natural persons . . . substituted service may not be freely elected; a diligent effort to make physical delivery must be shown. (See Judicial Council Comment to [Code of Civil Procedure 415.20, subd. (b)]; Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 798 [reasonable diligence was not exercised]; 21 Hastings L.J. 1273.) (3 Witkin, Cal. Procedure (5th ed. 2008) Actions,  1011, p. 1230.) And the burden is on Pagtakhan to show reasonable attempts were made. (Evartt v. Superior Court, supra, 89 Cal.App.3d at p. 801.) The four attempts at personal service hereover a four-day period, three of which were in the evening, all at a claimed businessdo not measure up.

Second, there is no factual showing that the business address, 21063 Cabot Blvd., Hayward, was in fact Cerons place of business. The only reference in the record even attempting to show this was Pagtakhans declaration in his opposition to the original motion, where he stated as follows: My only knowledge of the Defendants contact address is his usual place of business the All Pro Wrestling Gym in Hayward, Ca. where he used to train me and where he victimized me. It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served. (Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315, citing Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417.) Here, as an Corcoran, there is no indication in the record to tie in [Ceron] to the address where he was allegedly served. (Ibid.)

Pagtakhan has not demonstrated proper substituted service. And his remaining arguments have no merit.

B. Pagtakhans Other Arguments Have No Merit

Pagtakhan asserts four other arguments, which we quote verbatim:

The Trial Court Properly Denied Cerons First Proposed Motion To Quash Service Of Summons Yet Erroneously Entertained The Second Duplicate Motion After Refusing Twice To Enter Cerons Default

The Trial Court Wholly Neglected The Fact That Ceron Did Indeed Have, And Exercised, An Agency Relationship With His Co-Defendants

There Is No Other Way For Pagtakhan To Serve Ceron With The Initial Documents As Pagtakhan Has No Knowledge Of Cerons Whereabouts

Pagtakhan Would Be Committing A Violation Of An Imposed Court Order If He Contacted Or Attempted To Obtain Cerons Addresses

As noted, Cerons first motion to quash was expressly denied without prejudice. Thus, it does not bar the second motion.

Second, Pagtakhan presents no evidence that Chris Clifton, the person served, was Cerons agent for service. Indeed, the express testimony in the record, from Ceron, is to the contrary.

Third, a claimed lack of knowledge as to where somebody resides does not eliminate the requirement that service be accomplished as required by law.

Fourth, the Criminal Protective Order Domestic Violence to which Pagtakhan points in support of his argument provides that he must take no action to obtain the addresses or locations of protected persons . . . unless good cause exists otherwise. Pagtakhan has made no showing that he attempted to demonstrate such good cause here.

DISPOSITION

The order appealed from is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

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Lambden, J.

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[1] Pagtakhan had filed another appeal (No. A125193), which was abandoned, as reflected in this courts order of July 2, 2009.