NATURE OF PROCEEDINGS: Hearing on Motions to Quash Service of Summons

 

Vacu Activ’s Motion to Quash Service of Summons is granted. Galiulina’s Motion to Quash Service of Summons is granted.

 

BACKGROUND

Foud Douma (Plaintiff) filed this action against Lola Galiulina and Vacu Activ (Defendants).

Vacu Activ and Lola Galiulina each filed a Motion to Quash Service of Summons. Plaintiff filed an Opposition to each Motion. The Court considers both motions together.

 

LEGAL STANDARD

Under Code of Civil Procedure § 418.10, subdivision (a)(1), “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over them.”

Without valid service of summons, the court never acquires jurisdiction over a defendant. See Kremerman v. White (2021) 71 Cal.App.5th 358, 371 ([C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void” [internal quotes and citation omitted]).

A defendant is under no duty to respond in any way to a defectively served summons. Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466. It makes no difference that the defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons. Ruttenberg v. Ruttenberg (1997) 53 CA4th 801, 808.

“When a defendant challenges the court’s 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 CA4th 403, 413.

 

ANALYSIS

I. Waiver

Plaintiff argues that Defendants made general appearances and, in doing so, waived their rights to challenge service of summons.

“A general appearance by a party is equivalent to personal service of summons on such party.” Code Civ. Proc., § 410.50.

“[A] party waives any objection to the court's exercise of personal jurisdiction when the party makes a general appearance in the action. Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341. “A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed.” Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756.

First, Plaintiff argues that Defendants’ counsel made a general appearance on March 14, 2025, when he filed a Code of Civil Procedure section 170.6 preemptory challenge on behalf of the Defendants.

In Loftin v. Superior Court (1971) 19 Cal.App.3d 577, 579 (Loftin), the court held that a trial court erred when it found that a party making a peremptory challenge under Code of Civil Procedure section 170.6 has made a general appearance. In reaching that conclusion, the court noted “[i]f it were the law that a 170.6 challenge amounts to a general appearance a most unfair situation would result: the party making the motion to quash would have to accept whatever judge is assigned to hear the motion, while his opponent could elect to exercise his peremptory challenge. We discern no legislative intent that a party who moves to quash summons should be thus procedurally disadvantaged.” Ibid.

Plaintiff fails to distinguish Loftin or otherwise present authority showing that a 170.6 challenge constitutes a general appearance. Therefore, the Court concludes that Defendants did not generally appear by making the peremptory challenge.

Second, Plaintiff argues that Defendants generally appeared by filing the instant motions. This argument is without merit. The Judicial Council Comment to Code of Civil Procedure section 418.10 notes that the section “continues the law that permits a defendant … who desires to challenge the jurisdiction of the court and to raise certain defenses, to make a special appearance for such purposes, without submitting to the jurisdiction of the court.”

Accordingly, the Court concludes that Defendants have not generally appeared in this case.

II. Hague Service Convention

Vacu Activ argues that service was invalid because Plaintiff failed to comply with the Hague Service Convention.

The Hague Service Convention is “a multilateral treaty that was formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law … [and] was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 698.

“‘Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law. This is true even in cases where the defendant had actual notice of the lawsuit.’” Rockefeller, supra, 9 Cal.5th at p.138 (quoting Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136) (citations omitted).

“The Hague Service Convention does not apply where the address of the person to be served is not known. A plaintiff is required to exercise reasonable diligence to ascertain a defendant's whereabouts. ‘No bright-line rule or singular test can be articulated identifying or quantifying what good faith efforts would amount to a proper showing of reasonable diligence’ in locating a defendant for purposes of service in compliance with the Hague Service Convention. A determination of reasonable diligence is ‘a factual inquiry appropriately left to resolution in the trial court.’ The burden is on the plaintiff to show that service of process on the defendant comported with the Hague Convention, or why the Hague Convention did not apply.” In re R.L. (2016) 4 Cal.App.5th 125, 147 (quoting Lebel v. Mai (2012) 210 Cal.App.4th 1154).

Plaintiff does not argue that it complied with the Hague Service Convention, instead relying on the waiver argument discussed above. Therefore, the Court finds that Plaintiff has not met its burden of showing proper service.

III. Substitute Service

Next, Galiulina argues that Plaintiff failed to properly serve her through substitute service.

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 (“The return of a process server registered pursuant to … the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”). However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.) Proof of service of summons may be impeached by evidence that contradicts it. City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. Code of Civ. Proc., § 415.10. If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leaving a copy of the summons and complaint at the person's “dwelling house, usual place of abode, usual place of business, or usual mailing address … in the presence of … a person apparently in charge … and by thereafter mailing a copy of the summons and complaint by first-class mail … to the person to be served at the place where a copy of the summons and complaint were left” Code of Civ. Proc., § 415.20, subd. (b). Reasonable diligence is typically satisfied where there are “two or three attempts to personally serve a defendant at a proper place” Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392). Substitute service is only proper if it occurs at the correct address. See Ellard v. Conway (2001) 94 Cal.App.4th 540, 545 (noting that defendants’ former address “was not the proper place to serve the [defendants] because they moved.”).

Here, Plaintiff’s proof of service reflects that substitute service of Galiulina was made on March 4, 2025, at 5788 W Adams Blvd Los Angeles, CA 90016-2459. However, Galiulina argues that this is not her place of business. In its opposition, Plaintiff states, “Plaintiff is not aware of the personal residence address of Defendant. As such, Defendant was sub-served at her place of business where she is an employee.” Opp. at p. 3:4-6. However, the Court notes that the declaration of Dominik Wronka refers to Galiulina’s employment with Vacu Activ in the past tense, indicating that she no longer works there. Wronka Decl. ¶ 4. Because Plaintiff fails to provide any evidence that the service address was Galiulina’s usual place of business at the time she was served, it has failed to meet its burden of establishing proper service.

 

CONCLUSION

Vacu Activ’s Motion to Quash Service of Summons is granted. Galiulina’s Motion to Quash Service of Summons is granted.