Schmalle v. Prudhomme

[9] 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA [12] 13 JORAL SCHMALLE, et al., Case No.: 18-cv-02469 W (MDD) 14 Plaintiffs, ORDER 15 v. (1) GRANTING DEFENDANT J6 DEVELOPMENT, LLC’S MOTION 16 PATRICIA PRUDHOMME, as TO SET ASIDE DEFAULT [DOC. 6] Representative of ESTATE OF GUY 17 AND PRUDHOMME, et al., (2) QUASHING SUMMONS [18] Defendants. [20] 21 Pending before the Court is Defendant J6 Development, LLC’s motion to set aside 22 default and dismiss the complaint for, among other reasons, insufficient service of 23 process under Federal Rule of Civil Procedure 12(b)(5). Plaintiffs oppose. 24 The Court decides the matters on the papers submitted and without oral argument 25 under Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS 26 Defendant’s motion to set aside the default [Doc. 6], but ORDERS the summons 27 quashed. [28] 1 I. BACKGROUND 2 On July 23, 2018, Plaintiffs Joral Schmalle, Loren Schmalle, Marla Schmalle, and 3 JLM Funding, LLC filed this lawsuit in the San Diego Superior Court against Defendants 4 Patricia Prudhomme, as the representative of the estate of Guy Prudhomme (the 5 “Estate”), and J6 Developments, LLC (“J6”), among others. (See Compl.1) The lawsuit 6 arises out of loans each of the four plaintiffs made individually to Columbia Property 7 Capital, LLC (“CPC”). (Compl. ¶¶ 29, 30, 35–37.) The loans were secured by a 8 Personal Guarantee signed by CPC’s chief executive officer and owner, Guy 9 Prudhomme. (Id. at Exs. 4–5, 7–9, 12; Estate’s Ans. [Doc. 2] ¶ 22.) 10 Between February 2016 and May 2017, Guy requested and received several 11 extensions on the loans as they became due. (Compl. ¶ 39.) However, on May 21, 2017, 12 Guy was shot and killed by his neighbor over a property dispute. (Id. ¶ 42.) After Guy’s 13 death, Plaintiffs attempted to secure payment of the loans. (Id. ¶¶ 44–49.) When those 14 efforts were unsuccessful, Plaintiffs filed this lawsuit asserting causes of action for 15 breach of contract, account stated, and fraud and intentional deceit, and seeking to 16 recover principle and interest, along with damages and attorneys’ fees. 17 J6 is a limited liability company authorized to do business in the District of 18 Columbia. (Compl. ¶ 9.) On July 27, 2018, Plaintiffs’ Washington D.C. process server 19 attempted to serve J6’s agent for service of process, but the address listed with the 20 Washington D.C. Secretary of State was incorrect. (Webb Decl. [Doc. 7-1] ¶ 3.) Four 21 days later, Plaintiffs’ process server personally served James Prudhomme with the 22 summons and complaint at J6’s primary office. (Id. ¶ 4, Ex. 1.) At the time, Mr. 23 Prudhomme was identified on J6’s website as its Purchasing Manager. (Id. ¶ 5, Ex. 2.) 24 // 25 // [28] 1 J6 did not respond to the Complaint, and on September 25, 2018, Plaintiffs 2 obtained Entry of Default against J6 in the San Diego Superior Court. (Notice of 3 Removal Ex. B [Doc. 10-3].) 4 On October 26, 2018, Defendants Patricia Prudhomme and CPC removed the 5 action to this Court based on diversity jurisdiction. (Notice of Removal ¶¶ 6–13.) 6 Thereafter, this Court issued an order remanding the claims against CPC based on the 7 parties’ forum-selection clause. (Remand Order [Doc. 17] 10:15–19.) J6 now moves to 8 set aside the default and to dismiss the case based on, among other things, insufficient 9 service of process. [10] 11 II. LEGAL STANDARDS 12 A defendant may challenge service of process under Federal Rule of Civil 13 Procedure 12(b)(5). When service is challenged, plaintiff bears the burden of 14 establishing its validity. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.2004). 15 “Normally, a court will resolve any factual disputes raised by a Rule 12(b)(5) motion.” 16 Team Enterprises, LLC v. Western Investment Real Estate Trust, 2008 WL 4367560 , * 1 17 (E.D.Cal. 2008) (citing Fed.R.Civ.P.12(i)). If it appears that effective service can be 18 made and there has been no prejudice to the defendant, the court will quash service rather 19 than dismiss the action. Id. (citing Umbenhauer v. Woog, 969 F.2d 25 , 31 (3rd 20 Cir.1992)). In determining the validity of service made before removal, the Court must 21 apply the law of the state under which service was made. Whidbee v. Pierce County, 857 22 F.3d 1019, 1023 (9th Cir. 2017). [23] 24 III. DISCUSSION 25 J6 contends Plaintiffs’ service of the summons and complaint was insufficient 26 under California law. (P&A [Doc. 6] 10:15–23.) Plaintiffs respond that service was 27 valid because Mr. Prudhomme was “apparently in charge” of J6’s office or headquarters 28 at the time of service. (Opp’n [Doc. 7] 4:3–5.) 1 Under California law, service on a corporation is accomplished by delivering a 2 copy of the summons and complaint to “the person designated as agent for service of 3 process” or “the president, chief executive officer, or other head of the corporation, a vice 4 president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller 5 or chief financial officer, a general manager….” Cal.Code.Civ.P. § 416.10. A “general 6 manager” under the California statute includes “any agent of the corporation of sufficient 7 character and rank to make it reasonably certain that the defendant will be apprised of the 8 service made.” Gibble v. Car–Lene Research, Inc., 67 Cal. App. 4th 295 (1998) (quoting 9 Eclipse Fuel Engineering Co. v. Superior Court, 148 Cal. App. 2d 736 , 745–46 (1957)) 10 (internal quotation marks omitted) 11 Service may also be accomplished by delivering the documents to someone with 12 “ostensible authority” to accept service on behalf of defendant. CCP § 416.10(b); 13 Pasadena Medi-Center Assoc. v. Superior Court, 9 Cal. 3d 773, 777 (1973) (finding 14 service sufficient where the person served was held out by the defendant corporation to 15 be the Secretary-Treasurer). “Ostensible authority arises when the defendant corporation 16 causes or allows the plaintiff to believe the employee possessed the authority of a 17 corporate officer.” Pasadena Medi-Center, 9 Cal.3d at p. 780 (citing Cal.Civ.Code, § 18 2317). 19 Strict compliance with statutes governing service of process is not required under 20 California law. Gibble, 67 Cal.App.4th at 313 . “Rather, in deciding whether service was 21 valid, the statutory provisions regarding service of process should be liberally construed 22 to effectuate service and uphold the jurisdiction of the court if actual notice has been 23 received by the defendant.” Id. However, the fact that an employee of the corporation 24 receives the summons does not establish substantial compliance because Code of Civil 25 Procedure § 417.20 (a) requires evidence “establishing actual delivery to the person to be 26 served.” Shapiro v. Thrifty Payless, Inc., 2002 WL 31112533 , *4 (2nd Dist. 2002) 27 (citing Dill v. Berquist Construction Company, Inc., 24 Cal.App.4th 1426 , 1438-1439 28 (1994)). “When the defendant is a corporation, the “person to be served” is one of the 1 individuals specified in section 416.10. [Citation omitted.] Thus, there is no substantial 2 compliance where plaintiff fails to direct the summons toward a person who can be 3 served on the corporation's behalf under section 416.10.” Id. (citing Dill at 1439 ). 4 In Gibble, plaintiff served defendant Car-Lene Research, Inc., by delivering a copy 5 of the summons and complaint with Jean Coddington, a manager at the company’s 6 Stonestown Galleria Shopping Center Officer. Id. 67 Cal.App.4th at 299 . In evaluating 7 whether service was sufficient under section 416.10, the court found the evidence 8 established Coddington “had sole, unfettered authority to hire and fire employees, to 9 authorize payment of their wages, to authorize or withhold payment to interview subjects, 10 and to conduct Car-Lene’s core business activities in the San Francisco area, apparently 11 without oversight from any other manager or officer of the corporation.” Id. at 313 . 12 Based on these uncontroverted facts, the court found that service was sufficient because 13 plaintiffs “could reasonably conclude that Coddington was ‘a general manager’ for Car 14 Lene” because the facts supported the inference that Coddington was of “sufficient 15 character and rank to make it reasonably certain that the defendant will be apprised of the 16 service made.” Id. 17 Here, Plaintiffs’ contention that Mr. Prudhomme was the equivalent of a “general 18 manager” is based on his position as J6’s Purchasing Manager. (Opp’n 4:3–5.) In 19 support of this contention, Plaintiffs attach a copy of his job description, which states: 20 “James Prudhomme, a graduate of ODU, constantly sources the best products and 21 vendors to incorporate in our projects and ensures timely delivery of all materials to the 22 construction sites.” (Webb Decl. Ex. 2.) 23 In contrast to the manager in Gibble, Mr. Prudhomme’s job description does not 24 indicate he is responsible for personnel decisions or that he is in any way responsible for 25 overseeing J6’s office. Rather, his responsibility for “sourcing” products and vendors, 26 and ensuring delivery of materials to jobsites appears to involve working with outside 27 vendors and jobsites. Nor is there any evidence suggesting whether he is subject to any 28 oversight with respect to his listed responsibilities. In short, the evidence is insufficient 1 to support a finding that Mr. Prudhomme’s position within J6 was of sufficient character 2 and rank to make it reasonably certain that J6 would be apprised of the service. 3 Additionally, Plaintiffs have not provided this Court with any authority suggesting 4 that an employee whose job responsibilities do not involve managing the corporation’s 5 office can be considered an office manager. And this Court’s independent research has 6 not located a case supporting such a finding. To the contrary, courts view managing 7 agents and/or general managers as employees who have some substantial authority within 8 a corporation. See Garabedian v. Griffin Steel & Supply Co., 340 F.2d 478, 479 (9th Cir. 9 1965) (“We believe managing agent implies some real authority of decision, something 10 broader than just soliciting.”); Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 11 F.3d 615, 624 (6th Cir. 2004) (“A managing agent is one authorized to transact all 12 business of a particular kind at a particular place and must be vested with powers of 13 discretion rather than being under direct superior control.”); Cooney v. Barry Sch. of 14 Law, 994 F. Supp. 2d 268, 270 (E.D.N.Y. 2014) (“[T]he phrase managing or general 15 agent does not refer to any agent of the corporation, but one who operates at its highest 16 levels, or at least has overall authority to make high-level decisions on the part of the 17 enterprise.”) (internal quotation marks omitted). Indeed, courts have even found service 18 of a summons and complaint on a store or restaurant manager insufficient because they 19 lack the type of substantial management authority found in Gibble. See e.g. Aussieker v. 20 M&S Green-Power Energy, Inc., 2019 WL 2183783 (E.D. Cal. 2019) (finding service 21 insufficient where documents were left with person identified as “Manager”); Shapiro v. 22 Thrifty Payless Inc., (holding service on Rite Aid store manager was insufficient because 23 was demonstrated that she was not in a position of such authority to hire or fire 24 employees or to authorize payment of their wages without oversight, and not apparently 25 in charge of the corporation’s office or headquarters give she was one of over 500 “store 26 managers”); Lacey v. Shoreline Foods, Inc., 2018 WL 4328107 *3 (2nd Dist. 2018) 27 (finding service on restaurant manager insufficient). [28] 1 Plaintiffs nevertheless insist that service was sufficient because, based on Mr. 2 ||Prudhomme’s position in the company and the fact that he is the son of J6’s CEO, “it 3 || bends imagination to the breaking point for j6 to insinuate it” did not have notice of the 4 ||service. (Opp’n 4:5-8.) But as J6 points out, a defendant’s actual notice of the summons 5 ||and complaint does not cure defective service. See Honda Motor Co. v. Superior Court, 6 || 10 Cal-App.4th 1043, 1048 (1992) (explaining that “California is a jurisdiction where the 7 || original service of process, which confers jurisdiction, must conform to statutory 8 requirements or all that follows is void. [Citations omitted]”). For these reasons, the 9 || Court finds Plaintiffs’ service of the summons and complaint on J6 was insufficient. [10] 11 CONCLUSION & ORDER 12 In light of the foregoing, J6’s motion to set aside the default [Doc. 6] is 13 GRANTED. However, there is no indication in the record that Plaintiffs cannot serve J6, 14 ||nor is there any indication that J6 will suffer prejudice. Accordingly, the Court 15 || QUASHES service on Defendant J6 Development, LLC. See Team Enterprises, LLC, 16 || 2008 WL 4367560 , *1 (E.D. Cal. 2008) (“If it appears that effective service can be made 17 || and there has been no prejudice to the defendant, the court will quash service rather than 18 || dismiss the action.”’) (citing Umbenhauer v. Woog, 969 F.2d 25 , 31 (3rd Cir.1992)); 19 || Winn v. Lassen Canyon Nursery, Inc., 2011 WL 13239397 , *1 (E.D. Cal. 2011) (same). 20 || Plaintiffs are ORDERED to serve Defendant J6 Development, LLC within 60 days from 21 || the date of this order if they wish to proceed with their claims against it. 22 IT IS SO ORDERED. [23] 24 Dated: August 23, 2019 \ 26 Hn. 1 omas J. Whelan 7 United States District Judge