Preview
Superior Court of California
County of Kern
Bakersfield Department 17
Date: 12/18/2020 Time: 8:30 AM - 12:00 PM
BCV-20-100927
HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL
Courtroom Staff
Honorable: Thomas S. Clark Clerk: Linda K. Hall
Court reporter: . None Bailiff: Deputy Sheriff
Interpreter: Language of:
Court Call
NATURE OF PROCEEDINGS: MOTION TO QUASH (PRE-DISPOSITION)
Hearing Start Time: 8:57 AM
The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as
reflected.
***COURT INFORMS COUNSEL THAT THE COURT WILL NO LONGER HAVE A COURT REPORTER FOR LAW AND
MOTION***
Counsel Nina Sargsyan appeared via court call on behalf of Plaintiff.
Counsel Paul S. Cooley makes special appearance on behalf of Defendant - Do It Lab via court call.
Matter argued by counsel and submitted.
The Court makes the following findings and orders:
Defendant Do It Lab's Motion to Quash Service of Summons and Set Aside Default - Granted.
Regarding the moving argument objecting to the process server leaving the documents by the front door after
speaking to Ms. Li, who was the only person at Defendant's office address on the day of service, the court's
research shows that there is legal authority supporting that course of action. For example, in Khourie, Crew &
Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, the appellate court stated as follows:
, Defendant's agent for service of process, Jason Flemming, declares that nobody was present at Defendant's
business address, which is also the address for service of process, since everyone has been working from home due
to COVID and the stay-at-home orders. As stated in Khourie, cited above, the fact that Ms. Li here refused to let
the process server in the door and refused to accept the papers is not necessarily objectionable or enough to
MINUTES
Page 1 of 4
HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL BCV-20-100927
invalidate service under these circumstances. The only address for service provided via the California Secretary of
State's records, and as confirmed by Mr. Flemming, is the 1024 Santee St., Ste. 600, Los Angeles, CA 90015 office
address. It is undisputed this office address is where the process server went and it is further undisputed that Ms.
Li was the only person at the premises. The fact that Defendant sub-leases part of the 6th floor premises and that
Ms. Li works for its sub-lessee does not necessarily invalidate service under the circumstances here, given that
none of Defendant's staff are on site. The circumstances mean the process server had no option but to leave the
papers either with the only person at the premises, Ms. Li, or to leave the papers in front of the door after Ms. Li
refused to accept the papers and closed the door. According to Ms. Li's declaration, the papers were left by the
front door after Ms. Li closed the door.
However, the reason this court is choosing to grant the motion to quash, is because the court credits the Flemming
declaration's statement that no mail copy of the papers has been received, which rebuts the presumption of
proper substitute service. While Evidence Code section 647 creates a presumption of valid service by a registered
process server.
Plaintiff failed to present a declaration from the process server to support the validity of the service on Defendant.
Since the moving Flemming Declaration states that Defendant never received a copy of the papers in the mail, the
evidence supports the conclusion that substitute service was not properly completed.
The Proof of Service of Summon as to this Defendant Do Lab, Inc., filed by Plaintiff on 08/05/20 is hereby ordered
quashed and the default entered against Defendant Do Lab, Inc. on 10/22/20 is ordered set aside. Plaintiff is
ordered to re-serve this Defendant with process and to file proof of such service of process with this court.
As guidance for defense counsel, the court notes that in the event Defendant files a future motion to quash service
making similar arguments as those presented here, it is unlikely the court would credit another declaration stating
that mail service was not received. Defendant cannot defeat service by rendering physical service impossible or
repeatedly stating that mail to effectuate substitute service was not received. Therefore, the court urges counsel
to explore co-operation, such as possible acceptance of service of process via notice and acknowledgment, to
avoid further delay.
Copy of clerk's minutes will be the order of the court.
Copy of clerk's minutes emailed to all parties as stated on the attached declaration.
Minute order notice.
FUTURE HEARINGS:
January 25, 2021 8:15 AM Case Management Conference
Clark, Thomas S.
Bakersfield Department 17
Sheriff, Deputy
MINUTES FINALIZED BY: LINDA HALL ON: DECEMBER 18, 2020
MINUTES
Page 2 of 4
HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL BCV-20-100927
HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL
BCV-20-100927
CERTIFICATE OF MAILING AND/OR EMAIL****************
The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California,
in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in
the County of Kern, and not a party to the within action, that I served the Minutes dated December 18, 2020 attached
hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof,
enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following
standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached
mailing list.
Date of Mailing: December 18, 2020
Place of Mailing: Bakersfield, CA
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Tamarah Harber-Pickens
CLERK OF THE SUPERIOR COURT
Date: December 18, 2020
By: Linda Hall
Linda Hall, Deputy Clerk
Signed: 12/18/2020 10:58 AM
Certificate of Mailing
Page 3 of 4
HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL
BCV-20-100927
MAILING LIST
NINA SARGSYAN PAUL S. COOLEY
601 N VERMONT AVE EMAIL: cooley@roseman.law
LOS ANGELES CA 90004
nina.sargsyan.2013@lawmail.usc.edu
Certificate of Mailing
Page 4 of 4
Preview
Superior Court of California County of Kern Bakersfield Department 17 Date: 12/18/2020 Time: 8:30 AM - 12:00 PM BCV-20-100927 HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL Courtroom Staff Honorable: Thomas S. Clark Clerk: Linda K. Hall Court reporter: . None Bailiff: Deputy Sheriff Interpreter: Language of: Court Call NATURE OF PROCEEDINGS: MOTION TO QUASH (PRE-DISPOSITION) Hearing Start Time: 8:57 AM The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as reflected. ***COURT INFORMS COUNSEL THAT THE COURT WILL NO LONGER HAVE A COURT REPORTER FOR LAW AND MOTION*** Counsel Nina Sargsyan appeared via court call on behalf of Plaintiff. Counsel Paul S. Cooley makes special appearance on behalf of Defendant - Do It Lab via court call. Matter argued by counsel and submitted. The Court makes the following findings and orders: Defendant Do It Lab's Motion to Quash Service of Summons and Set Aside Default - Granted. Regarding the moving argument objecting to the process server leaving the documents by the front door after speaking to Ms. Li, who was the only person at Defendant's office address on the day of service, the court's research shows that there is legal authority supporting that course of action. For example, in Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, the appellate court stated as follows: , Defendant's agent for service of process, Jason Flemming, declares that nobody was present at Defendant's business address, which is also the address for service of process, since everyone has been working from home due to COVID and the stay-at-home orders. As stated in Khourie, cited above, the fact that Ms. Li here refused to let the process server in the door and refused to accept the papers is not necessarily objectionable or enough to MINUTES Page 1 of 4 HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL BCV-20-100927 invalidate service under these circumstances. The only address for service provided via the California Secretary of State's records, and as confirmed by Mr. Flemming, is the 1024 Santee St., Ste. 600, Los Angeles, CA 90015 office address. It is undisputed this office address is where the process server went and it is further undisputed that Ms. Li was the only person at the premises. The fact that Defendant sub-leases part of the 6th floor premises and that Ms. Li works for its sub-lessee does not necessarily invalidate service under the circumstances here, given that none of Defendant's staff are on site. The circumstances mean the process server had no option but to leave the papers either with the only person at the premises, Ms. Li, or to leave the papers in front of the door after Ms. Li refused to accept the papers and closed the door. According to Ms. Li's declaration, the papers were left by the front door after Ms. Li closed the door. However, the reason this court is choosing to grant the motion to quash, is because the court credits the Flemming declaration's statement that no mail copy of the papers has been received, which rebuts the presumption of proper substitute service. While Evidence Code section 647 creates a presumption of valid service by a registered process server. Plaintiff failed to present a declaration from the process server to support the validity of the service on Defendant. Since the moving Flemming Declaration states that Defendant never received a copy of the papers in the mail, the evidence supports the conclusion that substitute service was not properly completed. The Proof of Service of Summon as to this Defendant Do Lab, Inc., filed by Plaintiff on 08/05/20 is hereby ordered quashed and the default entered against Defendant Do Lab, Inc. on 10/22/20 is ordered set aside. Plaintiff is ordered to re-serve this Defendant with process and to file proof of such service of process with this court. As guidance for defense counsel, the court notes that in the event Defendant files a future motion to quash service making similar arguments as those presented here, it is unlikely the court would credit another declaration stating that mail service was not received. Defendant cannot defeat service by rendering physical service impossible or repeatedly stating that mail to effectuate substitute service was not received. Therefore, the court urges counsel to explore co-operation, such as possible acceptance of service of process via notice and acknowledgment, to avoid further delay. Copy of clerk's minutes will be the order of the court. Copy of clerk's minutes emailed to all parties as stated on the attached declaration. Minute order notice. FUTURE HEARINGS: January 25, 2021 8:15 AM Case Management Conference Clark, Thomas S. Bakersfield Department 17 Sheriff, Deputy MINUTES FINALIZED BY: LINDA HALL ON: DECEMBER 18, 2020 MINUTES Page 2 of 4 HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL BCV-20-100927 HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL BCV-20-100927 CERTIFICATE OF MAILING AND/OR EMAIL**************** The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California, in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in the County of Kern, and not a party to the within action, that I served the Minutes dated December 18, 2020 attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof, enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached mailing list. Date of Mailing: December 18, 2020 Place of Mailing: Bakersfield, CA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Tamarah Harber-Pickens CLERK OF THE SUPERIOR COURT Date: December 18, 2020 By: Linda Hall Linda Hall, Deputy Clerk Signed: 12/18/2020 10:58 AM Certificate of Mailing Page 3 of 4 HIGGINSON VS DO LAB, INC., A CALIFORNIA CORPORATION ET AL BCV-20-100927 MAILING LIST NINA SARGSYAN PAUL S. COOLEY 601 N VERMONT AVE EMAIL: cooley@roseman.law LOS ANGELES CA 90004 nina.sargsyan.2013@lawmail.usc.edu Certificate of Mailing Page 4 of 4