Judge Audra Mori, Case 20STCV17059 2022-10-03 Tentative Ruling

Plaintiff Naftoli Tzvi Leser (“Plaintiff”) filed this action against Defendant Nicole Vega Verdejo (“Defendant”) for damages arising from a motor vehicle accident. On March 21, 2022, Plaintiff filed proof of service showing personal service of the summons, complaint, and related documents on Defendant on March 20, 2022, at DD7 Calle 14 A, Caguas, Puerto Rico 00725.

Defendant now moves to quash service of the summons and to dismiss the action against her. Plaintiff opposes the motion.[1]

“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).)

“ ‘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.)

“The requirement of notice ‘is not satisfied by actual knowledge without notification conforming to the statutory requirements' [citation]; 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, Defendant asserts that at the time Plaintiff attempted to effectuate service on her, Defendant was in Cancun, Mexico, not in Caguas, Puerto Rico. Further, Defendant contends that the address on Plaintiff’s proof of service is not her dwelling house, usual place of abode or usual mailing address. Defendant avers she was never personally served, or served by substituted service, with the summons and complaint, and that she has not been served with the summons and complaint as required by statute.

The burden is on Plaintiff to establish that service of the summons and complaint was proper. (Summers, 140 Cal.App.4th at 413.) In opposition, Plaintiff argues the motion is moot because Defendant’s request for dismissal of the entire action against her operates as a general appearance, as Defendant’s motion is not limited to the question of the Court’s jurisdiction over her.

“[A] motion to quash service is strictly limited to the question of jurisdiction over the defendant.” (Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1360.) “Notwithstanding a ‘special appearance’ designation on a motion to quash, if the movant seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance.” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037.) A general appearance is made when a defendant either enters an appearance in an action without limiting the purpose of the appearance or when the defendant asks for relief on the merits and thus recognizes the authority of the court to proceed. (See Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) A general appearance in an action waives any objection to personal jurisdiction, and the defendant submits to the jurisdiction of the court. (See, e.g., Greener, 6 Cal.4th at 1036-37.)

Defendant, in this case, is moving to quash service of the summons on her contending that it did not comply with statutory requirements. The mere request the Court dismiss the action within Defendant’s motion to quash service of summons does not constitute a general appearance. (See CCP §§ 418.10(a)(1)-(2), (e), 583.220 [motion to dismiss made for failure to prosecute does not constitute general appearance “whether joined with a motion to quash service or a motion to set aside a default judgment, or otherwise.”]; see also Boisclair v. Superior Court (1990) 51 Cal. 3d 1140, 1144 n. 1 [recognizing “the hybrid motion to quash/dismiss as a proper means of challenging the court's authority without making a general appearance.”]; Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345 [“a defendant may move to quash coupled with any other act without being deemed to have submitted to the court's jurisdiction”].)

Greener v. Workers’ Comp. Appeals Bd., on which Plaintiff largely relies in arguing that Defendant has made a general appearance in this matter, is distinguishable from the circumstances presented here. In Greener, the defendant moved to quash service of summons and to dismiss the action on the ground that the court lacked jurisdiction over the defendant and subject matter jurisdiction of the action. (6 Cal.4th at 1034.) The Court held that there was personal jurisdiction over the defendant. (Id. at 1036.) In analyzing the defendant’s subject matter challenges, the Court wanted to make the point, preliminarily, that the defendant had used the wrong procedural vehicle to challenge subject matter jurisdiction. (Id. at 1036.) The Court noted that “[a] motion to quash service of summons lies on the ground that the court lacks personal, not subject matter, jurisdiction over the moving party… [¶] A challenge to the subject matter jurisdiction of a court is properly brought by demurrer to the complaint.” (Id. at 1036.) “The challenge may not, however, be made in a ‘special appearance’ by a motion to quash service of summons.” (Id.) The Court, thus, did not “accept the assumption of the [defendant] that by making its challenge by motion to quash and dismiss it avoided making a general appearance in the action.” (Id.) Unlike in Greener, Defendant is not challenging the Court’s subject matter jurisdiction over this matter or otherwise challenging any of the allegations in the complaint. (Id.; see also Kroopf, 183 Cal.App.3d at 1360 [defendant’s denial of entering into contract or the commission of the torts alleged in plaintiff’s complaint cannot form the basis for granting motion to quash service of summons].)

Accordingly, Plaintiff’s contention that Defendant has made a general appearance by requesting the Court quash service of summons and dismiss the action is rejected.

Plaintiff further contends that Defendant was properly served via substituted service. Plaintiff asserts that Plaintiff has had difficulties in serving Defendant, and after multiple efforts to locate Defendant, served her at the Puerto Rico address. Plaintiff argues that Defendant does not support her argument that the alleged substituted service was improper. However, the issue with Plaintiff’s argument that substituted service of the summons was proper is that Plaintiff’s proof of service alleges that Defendant was personally served with the summons and complaint, not served by substituted service.

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.

While the declaration of diligence attached to the Plaintiff’s proof of service states there were various persons present at the Puerto Rico address, Plaintiff’s proof provides, “PARTY SERVED: Nicole Vega Verdejo,” the Defendant herself. (Proof of Service filed March 21, 2022.) It does not identify any alleged “competent member of the household” on which the papers were served other than Defendant. What is more, even if the Court accepted that substituted service was accomplished on one of the persons described in the declaration of diligence, there is no proof of mailing attached to the proof of service, nor can the Court locate such in its records. CCP § 415.20(b) expressly states that “Service of a summons in this manner is deemed complete on the 10th day after the mailing.” Therefore, Plaintiff fails to show that substituted service was properly accomplished on Defendant. (CCP § 415.20(b).

Plaintiff does not otherwise argue or show that Defendant was personally served with the summons and complaint. Nor does Plaintiff submit any evidence to contradict Defendant’s claim she was in Cancun, Mexico at the time and date on Plaintiff’s proof of service. (Mot. Verdejo Decl. ¶ 4.)

Based on the foregoing, Defendant’s motion to quash service of the summons and complaint is granted.

Hon. Audra Mori

Judge of the Superior Court

[1] The Court notes that Plaintiff electronically filed two oppositions to the motion on September 19, 2022- one filed at 1:21 p.m. and the other at 4:11 p.m. The Court will consider only the opposition filed at 4:11 p.m.