Judge: Audra Mori, Case: 21STCV07713, Date: 2023-01-26 Tentative Ruling

Case Number: 21STCV07713    Hearing Date: January 26, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Elyse Alvarez (“Plaintiff”) filed this action against Defendants Jason Lischke (“Jason”) and Stephanie Lischke (“Stephanie”)[1] (collectively, “Defendants”) for damages arising from a motor vehicle accident.  The complaint alleges a single cause of action for negligence against Defendants.

On May 2, 2022, Plaintiff filed proof of service of the summons and complaint on Defendants alleging “Jason Lischke; Stephanie Lischke; and does 1-20 inclusive” were served via substitute service on August 21, 2021 by serving to documents on “Brandi Adams (Mail service)” at an address located at 6516 44th Avenue S., Seattle, WA 98118.   

On September 8, 2022 Defendant filed the instant motion to quash service of the summons and complaint.  Defendants aver they were not properly served with the summons and complaint because Defendants did not reside at the Washington address at the time of service. 

The motion is unopposed.  Further, on November 2, 2022, Plaintiff filed new proofs of service of the summons and complaint on each Jason and Stephanie alleging substituted service on Defendants. 

2. Motion to Quash Service Summons

“ ‘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.)

Here, Defendants aver at the time of the purported service, that they did not reside at the Washington address listed on the proof of service filed on May 2, 2022.  Further, Defendants assert that the Washington address has never been their mailing address, and that they do not know anyone by the name of Brandi Adams as listed on the proof of service.  Defendants contend that as a result, Plaintiff’s purported service of the summons and complaint on them was improper. 

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 January 12, 2023.  As of January 23, 2023, no opposition has been filed.  Because the motion is unopposed, Plaintiff necessarily did not meet the burden to establish that service was proper. 

            The motion to quash service of summons and complaint is therefore granted as to the proof of service of summons filed on May 2, 2022.  The Court makes no findings regarding the proofs of service filed on November 2, 2022, at this time. 

Plaintiff 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 26^th day of January 2023