Judge: Andrew E. Cooper, Case: 23CHCV01880, Date: 2023-11-16 Tentative Ruling

Case Number: 23CHCV01880    Hearing Date: November 16, 2023    Dept: F51

MOTION TO QUASH SERVICE OF PROCESS

Demurrer Filed: 8/15/23

MOVING PARTY: Specially Appearing Defendant Khachatus Serobyan (“Defendant”)

RESPONDING PARTY: Plaintiff Evelyn Avalos (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiff’s service of her Complaint and Summons on Defendant.

TENTATIVE RULING: The unopposed motion is granted.

BACKGROUND 

This is a personal injury action in which Plaintiff alleges that on 10/13/21, Defendant caused an automobile collision between his vehicle and that operated by Plaintiff. (Compl. p. 5.) On 6/27/23, Plaintiff filed her complaint, alleging against Defendant the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence.

On 7/18/23, Plaintiff filed a proof of service indicating that Defendant was served with process via substituted service at his residence on 7/7/23. On 8/15/23, Defendant filed the instant motion to quash. No opposition has been filed to date. On 11/7/23, Plaintiff filed a proof of service by publication.

ANALYSIS

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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 other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc. § 415.20, subd. (b).)

Here, the proof of service submitted by Plaintiff indicates that the summons and complaint were served by substitute service on 7/7/23, at 3:42 p.m., on an unnamed individual described as “Female; Asian; Approx. 60 years of age; 5’01”; 135lbs; GRY Hair; BRN Eyes” at 16847 Donmetz Street, Granada Hills, California 91344. (7/18/23 POS, ¶¶ 4, 5b.)

Defendant argues that here, service was defective because “(1) Plaintiff … has not shown that she made any good faith efforts at personally serving Serobyan before purportedly serving him by substitute service; (2) no evidence exists that the Complaint was mailed to Serobyan's address; (3) no person as described in the proof of service resides in Serobyan's household or is a competent member of Serobyan's household; and (4) no service of process was attempted on Serobyan's residence on the date and time listed in the proof of service.” (Def.’s Mot. 2:9–15.)

The Court agrees and finds that Plaintiff has failed to comply with the requirements under Code of Civil Procedure section 415.20, subdivision (b), including making reasonably diligent efforts to personally serve Defendant and mail copies of the complaint and summons to Defendant. (Code Civ. Proc. § 415.20, subd. (b).) The Court notes that Plaintiff has filed a proof of service on Defendant by publication, which the Court finds invalid for failure to comply with the requirements of Code of Civil Procedure section 415.50, namely obtaining the Court’s prior approval.

Based on the foregoing, the Court finds that Plaintiff has failed to properly effectuate service of the Complaint and Summons on Defendant. Accordingly, the unopposed motion is granted.

CONCLUSION 

The unopposed motion is granted.