Sochil Martin v. La Luz Del Mundo

O [77] United States District Court [88] Central District of California [1100] 1111 SOCHIL MARTIN, Case No. 2:20-cv-01437-ODW (ASx) 1122 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO 1133 v. DISMISS [123] 1144 LA LUZ DEL MUNDO, et al., 1155 Defendants. [1166] 1177 I. INTRODUCTION AND BACKGROUND 1188 On February 11, 2021, Plaintiff Sochil Martin filed a Proof of Service, which 1199 states that she served the Summons and Complaint on Defendant Rahel Garcia via 2200 substitute service. (Proof of Service, ECF No. 116.) Presently before the Court is 2211 Garcia’s second Motion to Dismiss under Federal Rules of Civil Procedure (“Rules”) 2222 12(b)(5) and (b)(2) for deficient service and lack of personal jurisdiction. (See Mot. 2233 Dismiss (“Mot.”), ECF No. 123.) The Motion is fully briefed. (See Opp’n, ECF 2244 No. 128; Reply, ECF No. 133.) For the reasons discussed below, the Court GRANTS 2255 Garcia’s Motion.1 [2277] 2288 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. LEGAL STANDARD 2 Under Rule 12(b)(5), a party may seek dismissal of a complaint for insufficient 3 service of process. Fed. R. Civ. P. 12(b)(5). “Service of process is a prerequisite for 4 personal jurisdiction over a defendant.” C&SM Int’l v. Prettylittlething.com Ltd., 5 No. CV 19-4046-CBM (KSx), 2019 WL 7882077 , at *1 (C.D. Cal. Oct. 8, 2019) 6 (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must 7 be served in accordance with Rule 4[] . . . or there is no personal jurisdiction.”)). 8 “Once service is challenged, [the] plaintiff[] bear[s] the burden of establishing that 9 service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 10 2004). “If Plaintiff fails to meet [her] burden, the court has discretion to either 11 dismiss an action entirely for failure to effect service or to quash the defective service 12 and permit reservice.” C&SM, 2019 WL 7882077 , at *1 (citing S.J. v. Issaquah Sch. 13 Dist., No. 411, 470 F.3d 1288 , 1293 (9th Cir. 2006)). 14 III. DISCUSSION 15 Garcia contends that the Court should dismiss her from this case pursuant to 16 Rule 12(b)(5) because she was not properly served. (See generally Mot. 5–8.) In the 17 alternative, Garcia contends that the Court lacks personal jurisdiction over her and 18 should dismiss her from this case pursuant to Rule 12(b)(2). (Id.) Martin responds 19 that she properly served Garcia through substitute service under California law. 20 (Opp’n 9–14.) The Court agrees with Garcia and finds that Martin failed to effect 21 substitute service. 22 Under Rule 4(e)(1), an individual may be served by “following state law for 23 serving a summons in an action brought in courts of general jurisdiction in the state 24 where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). 25 In this case, Martin elected to follow California’s substitute service law. (See Proof of 26 Service; Opp’n 9–14.) That law permits substitute service on a defendant if the 27 plaintiff, acting with reasonable diligence, cannot complete personal service. See Cal. 28 Civ. Proc. Code § 415.20(b); see also Bein v. Brechtel-Jochim Grp., Inc., 6 Cal. 1 App. 4th 1387, 1391–92 (1992) (“Ordinarily, . . . two or three attempts at personal 2 service at a proper place should fully satisfy the requirement of reasonable diligence 3 and allow substituted service to be made.”). To effect substitute service, the plaintiff 4 must leave a copy of the summons and complaint “at the person’s dwelling house, 5 usual place of abode, usual place of business, or usual mailing address other than a 6 United States Postal Service post office box.” Cal. Civ. Proc. Code § 415.20 (b). 7 For service to be proper, however, “[i]t is crucial that a connection be shown 8 between the address at which substitute service is effectuated and the party alleged to 9 be served.” Corcoran v. Arouh, 24 Cal. App. 4th 310, 315 (1994). “A person can 10 have more than one dwelling house or usual place of abode” for the purposes of 11 Rule 4(e). Stars’ Desert Inn Hotel & Country Club v. Hwang, 105 F.3d 521 , 527 12 (9th Cir. 1997). But there must be “sufficient indicia of permanence”—i.e., that the 13 property is not a temporary residence, for it to be considered the defendant’s dwelling 14 house or usual place of abode. See, e.g., Asmodus, Inc. v. Junbiao Ou, No. EDCV 1615 2511 JGB (DTBx), 2017 WL 5592914 , at *8 (C.D. Cal. Feb. 3, 2017) (finding that a 16 defendant’s investment property qualified as his dwelling house or usual place of 17 abode where there was evidence that he resided there sporadically throughout the 18 year). 19 Here, Martin claims her counsel used online databases and information obtained 20 from the United States Post Office to identify two properties with possible 21 connections to Garcia. (See Opp’n 13–14; Decl. of Deborah S. Mallgrave 22 (“Mallgrave Decl.”) ¶ 2, ECF No. 128-1.) Martin was unable to effect service on 23 Garcia at the first address, (Mallgrave Decl. ¶ 2), so Martin attempted service at the 24 second address, 308 N. Arizona Avenue, Los Angeles 90022, multiple times to no 25 avail, (Mallgrave Decl. ¶¶ 4–5). Finally, Martin resorted to substitute service at 26 308 N. Arizona Avenue by leaving it with Jaciel Enriques, who she alleges is Garcia’s 27 “nephew and co-occupant.” (Proof of Service.) [28] 1 As previously stated, to effect substitute service, Martin must leave a copy of 2 || the summons and complaint at Garcia’s dwelling house or usual place of abode. Cal. 3 || Civ. Proc. Code § 415.20(b). To show that 308 North Arizona Avenue is Garcia’s 4|| dwelling or usual place of abode, Martin must provide facts demonstrating a 5 || “sufficient indicia of permanence.” Corcoran, 24 Cal. App. 4th at 315 ; Asmodus 2017 6 || WL 5592914, at *8. Here, the only connection shown between Garcia and 308 North Arizona Avenue is information from the Post Office suggesting that Garcia previously 8 | received mail at the address. (See Opp’n 9; Mallgrave Decl., Ex. D, ECF No. 128-5.) 9 In opposition, Garcia attests that she has lived in Mexico since 2017 and does 10 || not reside in California. (Decl. of Rahel Garcia 42, ECF No. 127.) Garcia also 11 || provides a declaration from Enriques stating he does not live at 308 North Arizona 12 || Avenue and he is not Garcia’s nephew or co-occupant. (Mot. 6.; Decl. of Jaciel 13 | Enriques 4 1, ECF No. 125.) Based on the foregoing, there is no evidence that the 14 || 308 North Arizona Avenue property qualifies as Garcia’s dwelling place or usual 15 || place of abode, and as such, Martin fails to meet her burden to prove she effected 16 || substitute service on Garcia. See Brockmeyer, 383 F.3d at 801 . 17 In sum, Martin’s substitute service was deficient. Accordingly, the Court 18 | GRANTS Garcia’s Motion. 19 IV. CONCLUSION 20 For the foregoing reasons, the Court GRANTS Garcia’s Motion (ECF No. 123) 21 |} and DISMISSES Martin’s claims against Defendant Rahel Garcia without prejudice. 22 || This order does not affect Martin’s claims against the other Defendants. [23] 24 IT IS SO ORDERED. 25 July 27, 2021 ~N . 26 SB Yi, Tit 28 OTIS D. GHT, II UNITED STATES,DISTRICT JUDGE