Judge: Audra Mori, Case: 19STCV39494, Date: 2022-08-02 Tentative Ruling

Case Number: 19STCV39494    Hearing Date: August 2, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On November 4, 2019, Plaintiff Celedonio Alabat (“Plaintiff”) filed this action against defendants Linda Rivero (“Linda”) and Israel Rivero (“Israel”) for damages arising from a motor vehicle accident that occurred on or about November 18, 2017.  On February 9, 2022, Plaintiff filed proof of service of summons showing Plaintiff was served by substituted service on February 7, 2022, at 776 E Mountain St., Pasadena, CA 91104-4550.  The summons and complaint were allegedly served on Linda. 

Israel now moves to quash service of the summons and complaint.  The motion is unopposed.

2. Motion to 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. . . .”  (CCP § 418.10(a).) 

CCP § 415.20(b) provides:

(b) 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.

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]”  (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].) 

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.”  (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg)) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.”  (Ruttenberg, supra, 53 Cal.App.4th at p. 808.)  “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.”'  (Id. at p. 809.) It is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.”  (Kappel, supra, 200 Cal.App.3d at pp. 1466-67.) 

Here, Israel contends that he was not properly served with the summons and complaint because the address was not his dwelling house, usual place of abode, usual place of business, or usual mailing address at the time of service.  Israel avers that as a result, the purported substituted service of the summons and complaint on him is defective. 

 When a defendant files a motion to quash, the burden is on the plaintiff to establish that service of the summons and complaint was proper.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)  Any opposition to the motion was due on or before July 20, 2022.  As of July 27, 2022, no opposition has been filed.  Because the motion is unopposed, Plaintiff necessarily did not meet the burden to establish that service was proper. 

            Israel’s motion to quash service of summons and complaint is granted.

Moving Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 2^nd day of August 2022