Judge: Anne Hwang, Case: 23STCV01539, Date: 2024-07-09 Tentative Ruling

Case Number: 23STCV01539    Hearing Date: July 9, 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 January 24, 2023, Plaintiff Jacqueline Garcia (“Plaintiff”) filed a complaint against Defendants Manuel Guana Prado, Rosa Trujillo, Christopher Martinez, Ramon Guana, Richard Guana, Rosa Guana, Giovanny Martinez, Sara Trujillo, and Does 1 to 25 for injuries related to a dog bite.

On March 13, 2023, Plaintiff filed a proof of service of the complaint and summons on Defendant Ramon Gauna (“Defendant” erroneously sued as Ramon Guana) by personal service on February 12, 2023. On July 5, 2023, Plaintiff filed another proof of service of the complaint and summons on Defendant, by substitute service, also on February 12, 2023. On October 31, 2023, Plaintiff filed a final proof of service of the complaint and summons on Defendant by substitute service on September 11, 2023.

On October 31, 2023, default was entered against Defendant. The Court has not yet granted defaulted judgment.

On April 30, 2024, Defendant filed the instant motion to quash service of the summons and complaint and set aside entry of default under Code of Civil Procedure section 418.10(a)(1), or alternatively to set aside the default under section 473.5. Plaintiff opposes and Defendant replies.  

ANALYSIS

Quash Service of Summons

“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.)

A motion to set aside default under Code Civ. Proc., section 473.5 is not a general appearance when filed concurrently with a motion to quash service of summons under Code of Civil Procedure section 418.10. (Code Civ. Proc., section 418.10, subd. (d).)

“[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 1441-1442.) ¿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.)

“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.” (Code Civ. Proc. § 415.20(b).)         

Here, Defendant first seeks to discredit Plaintiff’s process server, showing that the proof of service filed March 13, 2023 attempted to show personal service at 9334 Coachman Ave., Whittier on Defendant and two other defendants who were deceased at the time.[1] (See Motion, 4; Gauna Decl. ¶ 6.) Therefore, Defendant questions the truthfulness of the process server.

On July 5, 2023, Plaintiff later filed a new proof of service on July 5, 2023, showing this time, substitute service on Defendant on February 12, 2023—the same date as the original proof of service. This proof of service contains a declaration by the process server Daniel Aragon, who declares that on February 12, 2023, there appeared to be a Super Bowl party at the address. (Proof of Service, 7/5/23, Aragon Decl. ¶ 4.) Aragon handed the papers to a man who answered the door who was “about 30 to 40 years old, 5'9" to 6' tall and about 200 lbs.” (Id., Aragon ¶ 5.)  However, this declaration does not show that Aragon confirmed that the person accepting the papers was a “member of the household” and not merely a guest at the purported Super Bowl party. In the instant motion, Defendant contends there was no Super Bowl viewing party on the day of service. (Gauna Decl. ¶ 6.)

Pertaining to the September 11, 2023 service, Defendant argues that substitute service never occurred. The proof of service shows that substitute service took place at 9334 Coachman Ave. Whittier, at 8:20 p.m. The papers were served on “‘John Doe’ (Refused Name) co-occupant; Asian American Male, 70’s, 170 lbs., 5’7, White Hair, Brown Eyes.” The proof of service also includes a declaration of diligence and mailing. The declaration of diligence states: “Substituted Service on John Doe– he refused name, he was in the garage area with lights on when I called Ramon Guana. He started walking into the house and would not talk to me, Asian American Male, 70’s 170 lbs., 5’’7, White Hair, Brown Eyes.”

Defendant argues that he is Hispanic and no one in his household appears to be Asian; he further states no one would have opened the door for a stranger at 8:20 at night. (Gauna Decl. ¶ 4.) Defendant also argues that he never received the summons and complaint in the mail.

Since Defendant is asserting that the Court lacks personal jurisdiction, Plaintiff has the burden to show by a preponderance of the evidence, that service was proper.

In opposition, Plaintiff contends that Defendant was personally served on February 12, 2023 because when Aragon asked for Defendant and the two deceased Defendants, three men came to the door and accepted the packages. Plaintiff argues no one stated that two were deceased. Therefore, they led Aragon to believe they were the named defendants. Plaintiff argues that even if these were not the named defendants, by accepting them, substitute service was effectuated. Finally, Plaintiff argues that the substitute service on September 11, 2023 was proper. Plaintiff sets forth evidence that Plaintiff’s counsel conducted a search of Defendant on “Been.Verified.com.” Counsel asserts the report confirmed Defendant’s address and that he is 77 years old. (Rosa Decl. ¶15.)

In reply, Defendant does not dispute that he resides at 9334 Coachman Avenue. But further disputes that the purported service took place. Defendant files a second declaration in reply, addressing the opposition. In it, Defendant states under penalty of perjury that “[t]here is no Asian person who lives at my residence or who has visited my residence in the last few years. There is no one living at my residence or even has visited my residence (especially who would have been in the garage in the last year with white hair. It would have been impossible for someone to hand papers to anyone (or even throw papers at anyone) in the garage of my residence because there is a locked, wrought iron and metal mesh gate about twenty-five feet in front of the area which prevents entry to the back of the driveway and garage area.” (Gauna Decl. ¶ 4–5.)

Plaintiff provides no support that service can be effectuated if the process server is led to believe that they served the proper person. Plaintiff also provides no evidence that on February 12, 2023, any person explicitly stated they were the named defendants. As for the September 11, 2023 substitute service, while Plaintiff provides evidence of Defendant’s address, and the fact that his age matches the description in the proof of service, Plaintiff provides no further evidence to show that the person served was a member of the household. There are no further descriptions of Defendant’s characteristics to determine whether service occurred. The declaration by Elias Elhayek, who purportedly effectuated service on September 11, 2023, does not contain specific facts of the service and only authenticates the declaration of diligence attached to the proof of service. (Elhayek Decl. ¶ 2, Exh. C.)

Therefore, Plaintiff has not shown by a preponderance of the evidence, that service was proper. Therefore, the motion to quash is granted and the default entered on October 31, 2023 against Defendant is set aside.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s motion to quash service of summons and complaint.

The matter is set for an Order to Show Cause Re: Dismissal or Monetary Sanctions for Failure to Serve for September 16, 2024 at 8:30 a.m.

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