Judge: Anne Hwang, Case: 20STCV18470, Date: 2023-08-07 Tentative Ruling

Case Number: 20STCV18470    Hearing Date: August 7, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Tonya M. Vanparys (“Defendant”) appears specially and moves to quash service of the summons and complaint.  No opposition has been filed by Plaintiff Lilit Baghdasaryan (“Plaintiff”).

ANALYSIS

As a preliminary matter, while Defendant filed an answer to the Complaint on March 17, 2023, the Court does not consider it a waiver of Defendant’s objection to personal jurisdiction because Defendant’s motion to quash was filed earlier on January 19, 2023. (Code Civ. Proc. § 418.10, subd. (e)(1).)

Discussion

“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 for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”  (Code Civ. Proc., § 418.10, subd. (a)(1).) 

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash,  the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“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 existence of jurisdiction by proving, inter alia, the facts requisite to an effective service” ”].)  

“In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.  (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.)  A plaintiff may serve an individual defendant “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 competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , 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.”  (Code Civ. Proc., § 415.20, subd. (b).)

Here, Plaintiff filed a proof of service on December 12, 2022, which reflects service on Defendant via substituted service at 61846 Chollita Rd., Unit B, Joshua Tree, CA 92252 on December 9, 2022.  Plaintiff purportedly served Defendant via substitute service on Ryan “Doe.” (See Proof of Service filed on December 12, 2022 at pg. 1.) However, Plaintiff’s proof of service reflects that the occupant of the location where Defendant was purportedly served claimed:  “Subject does not live or receive mail here.”  (Id. at pg. 3.)  Thus, the filing of this proof of service does not create a rebuttable presumption of service because the declaration of diligence does not establish that the copy of the summons and complaint was left at Defendant’s “dwelling house, usual place of abode, usual place of business, or usual mailing address.” (Code Civ. Proc. § 415.20, subd. (b); Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Furthermore, Defendant attests that she moved from the aforementioned Joshua Tree residence on July 27, 2022. (Motion, Vanparys Decl. ¶ 2.) Accordingly, the substitute service on Defendant via Ryan “Doe” is invalid.  

CONCLUSION AND ORDER

Consequently, the Court grants Defendant’s motion to quash service of the summons and complaint.

The Court sets an Order to Show Cause hearing re why monetary sanctions should not be imposed due to Plaintiffs’ failure to file a proof of service of the summons and complaint for September 7, 2023 at 8:30 A.M. in Department 32.   (See Cal. Rules of Court, rule 3.110(f).)   Plaintiff must file any responsive papers at least five calendar days before the Order to Show Cause hearing.  (See Cal. Rules of Court, rule 3.110(i).)  The Court may impose monetary sanctions against Plaintiff or Counsel for Plaintiff, at the time of the Order to Show cause hearing if Counsel for Plaintiff or Plaintiff fail to appear, or fail to give good cause for the delay in serving the summons and complaint.  (See Code Civ. Proc., §§ 128, 177.5; Cal. Rules of Court, rule 2.30.)   

The Clerk of the Court shall provide notice of the Court’s order.