Unreported / Non-Citable
Background
Cumulus Broadcasting LLC sued its former vice president and market manager, Sommer Frisk, in Ventura County Superior Court on June 8, 2026, alleging breach of contract, fraud, misappropriation of trade secrets, and related torts after she left in January 2026 to work for competitor Connoisseur Media. Between June 9 and June 12, 2026, process servers made repeated attempts at personal service at Frisk's Palm Springs workplace, encountering a locked gate and waiting extended periods without seeing anyone. On June 12, a second process server found a separate entrance and left the summons and complaint with Jamie Steinberg, an account executive who reported to Frisk and offered to place the documents in Frisk's office; copies were mailed to the office address that same day.
Frisk removed the action to the Central District of California on July 22, 2026, invoking diversity jurisdiction. Cumulus moved to remand, arguing the forum defendant rule barred removal because Frisk is a California citizen who was properly served before removal. Frisk moved to dismiss or quash service, contending Cumulus failed to exercise reasonable diligence before resorting to substitute service and that Steinberg was not a person 'apparently in charge' of the office under California Code of Civil Procedure section 415.20(b). The parties filed combined briefs, and the court decided both motions without oral argument.
The Court’s Holding
The court granted the motion to remand, holding that service was proper under California law and the forum defendant rule therefore barred removal. On reasonable diligence, the court found that process servers attempted personal service at Frisk's usual place of business on three different days at different times, waiting nearly two hours on one occasion and an hour and a half on another, and that when access was finally gained the server learned Frisk was away with no return date. Reasonable diligence requires a good faith effort at personal service, not exhaustion of every conceivable avenue, so Cumulus's efforts sufficed.
The court also held that Steinberg qualified as a person 'apparently in charge' under section 415.20(b). When the process server arrived, Steinberg was controlling the door, admitted the server, and spoke with her beside an unstaffed reception desk; she knew Frisk, knew Frisk was away for personal reasons, and offered to place the documents in Frisk's office. The statute does not require a managerial title or formal authorization to accept service—only that the circumstances confronting the process server indicate the recipient is apparently in charge and has a reasonable connection to the defendant making delivery likely. Because Steinberg reported to Frisk and did deliver the documents, service was complete on June 22, 2026, a month before removal.
Because Frisk, a California citizen, was properly joined and served before she removed the action, the forum defendant rule under 28 U.S.C. § 1441(b)(2) barred removal, and Cumulus timely objected, so remand was required. The court denied Frisk's motion to dismiss or quash service as moot and denied Cumulus's request for attorney's fees under § 1447(c), finding that Frisk's removal rested on a colorable challenge to substitute service and was not objectively unreasonable even though ultimately unpersuasive. The court remanded the case to the Ventura County Superior Court and directed the clerk to effect the remand immediately.
Key Takeaways
- Substitute service at a defendant's workplace is valid under California law when the plaintiff makes repeated good faith attempts at personal service and leaves the documents with a person who appears to be in charge and has a reasonable connection to the defendant.
- The forum defendant rule bars removal when a defendant is a citizen of the state where the action was brought and was properly served before removal, even if the defendant challenges the sufficiency of that service.
- A recipient of substitute service need not hold a managerial title or be formally authorized to accept service; the question is whether the circumstances confronting the process server indicate the person is apparently in charge.
- Reasonable diligence requires a good faith effort at personal service, typically two or three attempts at a proper place, but does not require exhausting every conceivable avenue of service.
- Attorney's fees under § 1447(c) are denied where the removing party's position, though unsuccessful, was not objectively unreasonable.
Why It Matters
This decision reinforces strict construction of the forum defendant rule and clarifies the standards for valid substitute service under California law in the removal context. The court emphasizes that process servers need not exhaust every possible method of personal service before resorting to substitute service, and that the 'apparently in charge' requirement is judged by the circumstances confronting the process server, not by the recipient's actual authority or title.
The ruling also illustrates the interplay between state service requirements and federal removal procedure: whether a defendant was 'properly served' for forum-defendant-rule purposes is determined by state law. Finally, it shows that removal based on a colorable challenge to service sufficiency may be objectively reasonable and therefore not subject to fee-shifting under § 1447(c).