Judge: Anne Hwang, Case: 21STCV34334, Date: 2024-01-10 Tentative Ruling

Case Number: 21STCV34334    Hearing Date: January 10, 2024    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.  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

BACKGROUND

On September 17, 2021, Plaintiff Gilberto Vera (Plaintiff) filed a complaint against Defendants Francisco Salas Corona, Alfonso Del Real Montoya, Johnny Lobos, and Does 1 to 10 for injuries related to an alleged motor vehicle accident. On October 20, 2023, Plaintiff filed a proof of service which purports that Specially appearing Defendant Alfonso Montoya Del Real (Defendant) was served the summons and complaint by personal service to “Nancy Rasor, Owner of Postal Atmex & Authorized Agent for Alfonso Montoya Del Real, per CCP 416.90.” The purported service occurred on October 18, 2023.

Defendant now moves to quash service of the summons and complaint, arguing service was defective and as such, the Court lacks personal jurisdiction over Defendant. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“A defendant . . . 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(a).)¿The motion must be filed on or before the last day on which the defendant must plead or within any further time that the court may for good cause allow. (Id.)

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”¿(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)¿“[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”¿(Id. at 1441-42.) ¿On a motion to quash service of summons, the plaintiff has the burden of establishing by a preponderance of the evidence the prima facie facts entitling the court to assume jurisdiction, including whether service was in compliance with statutory requirements. (Lebel v Mai (2012) 210 Cal.App.4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.) “A court lacks jurisdiction over a party if there has not been proper service of process.”¿(Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Code of Civil Procedure section 416.90 states: “[a] summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.”

If the summons and complaint cannot be delivered personally with reasonable diligence, 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).)¿¿ 

“Notwithstanding [section 415.20(b)], if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency [CMRA], service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (Code Civ. Proc. § 415.20(c).)

Business and Professions Code section 17538.5(d)(1) states the following:

“Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement. Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer's mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing.

If the CMRA owner or operator has complied with the foregoing requirements and provides to any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing, the CMRA owner or operator shall have no further liability in connection with acting as agent for service of process for its mail receiving service customer.”  

DISCUSSION

Defendant argues that Nancy Rasor, owner of a Postal Annex, was not authorized by Plaintiff to receive service on his behalf. Therefore, since Defendant challenges the service, Plaintiff has the burden to prove, by a preponderance of the evidence, that service was proper.

In opposition, Plaintiff argues that he followed the requirements of section 416.90 by serving an authorized agent pursuant to Business and Professions Code section 17538.5. Plaintiff argues that Defendant’s listed address on the Traffic Collision Report was 416 W. San 10 Ysidro Blvd., # 308, San Ysidro, CA 92173, and was a private mailbox. (Martinez Decl. ¶ 4, Exh. 1; Brummond Decl. ¶ 3.) Plaintiff’s process server visited the address and declared it was a CMRA. (Brummond Decl. ¶ 3–5.) Brummond also states his investigation revealed no other address for Defendant. (Id. ¶ 4.)  Brummond confirmed that Nancy Rasor was the owner of the CMRA and authorized to receive service of process on behalf of Defendant. (Brummond Decl. ¶ 6.)

Defendant did not provide a declaration and does not appear to challenge that he owns a private mailbox at the address where service occurred.

However, Plaintiff’s evidence that the private mailbox was the only address reasonably known to Defendant is the conclusory statement by the process server that his “investigation revealed no other valid address for Defendant.” (Brummond Decl. ¶ 4.) Brummond does not indicate what his investigation entailed. Also, Plaintiff provides no evidence that Defendant signed an agreement authorizing Nancy Rasor, as owner of the CMRA, to act as an agent for service of process. Therefore, Plaintiff fails to meet his burden.

Plaintiff argues the motion is untimely because it was filed after the deadline for a responsive pleading. (Code Civ. Proc. § 418.10(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.”].) Defendant argues that Plaintiff agreed to an extension of the deadline to file a responsive pleading. In any event, Plaintiff has not sufficiently shown that service was proper. Accordingly, the Court finds good cause to allow Defendant further time.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Specially Appearing Defendant Alfonso Montoya Del Real’s motion to quash service of summons and complaint.

Defendant to provide notice and file a proof of service of such.