Judge: Christian R. Gullon, Case: 22PSCV00040, Date: 2023-08-30 Tentative Ruling

Case Number: 22PSCV00040    Hearing Date: August 30, 2023    Dept: O

Tentative Ruling

Specially Appearing Defendant Aniceto Diaz, Sr’s Motion to Quash Service of Summons and Complaint is MOOT because Plaintiff filed amended proofs of service.  

Background

This case arises from the alleged breach of a verbal agreement. Plaintiff Alfred Concepcion (“Plaintiff”) alleges the following against Specially Appearing Defendant Aniceto Diaz (“Specially Appearing Defendant” or ‘Defendant Diaz”): The parties entered into a verbal agreement wherein Plaintiff would pay the monthly mortgage on a home in return for “all the property tax [] paid during [the] stay.” (Complaint p. 4 of 5 of PDF.) But Defendant never gave the monthly $500 share and “constantly verbally abused [Plaintiff] to the point that [Defendant] physically hurt [Plaintiff’s wife].”[1]

On January 14, 2022, Plaintiff filed the instant action against Specially Appearing Defendant for breach of contract.

On January 20, 2022, Plaintiff filed its ‘Proof of Personal Service.’[2]

On March 22, 2022, Defendant Diaz filed the instant Motion to Quash Service of Summons (“Motion”).

On September 16, 2022, Plaintiff filed a ‘Response to the Motion of Defendant and Lawyer to Quash Service of Summons.’

On September 28, 2022, the court issues the following minute order re: Hearing on Motion to Quash Service of Summons: “The Motion is called for hearing. The parties have reviewed the Court's Tentative Ruling. The Court hears plaintiff's arguments. The Court adopts it's Tentative Ruling as the order. The Motion to Quash Service of Summons filed by Aniceto Diaz, Sr. on 03/22/2022 is Granted.” (emphasis added).

On November 4, 2022, Plaintiff filed three documents: Proof of Service by Mail, Proof of Service by Mail c/o Froilan Diaz, and Proof of Service by Mail c/o Anthony Marinaccio. All three, which appear identical, indicate that Plaintiff (through someone named Alexandar D. Marcial, served Defendant and Frolian Diaz (Defendant’s son) via first class mail on 9/30/22.

On February 14, 2023, Defendant Diaz filed the instant motion to quash the service of summons.

On May 22, 2023, Plaintiff filed a Proof of Service by Mail Summons/Complaint/notice of case assignment on 5/19/2023 and a Proof of Service by Mail Summons/Complaint/Case Reassignment 5/18/2023.

On June 9, 2023, Plaintiff filed a Proof of Service by Mail (dated 5/31/2023) and a Proof of Personal Service (dated June 2, 2023).[3]

Legal Standard

“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 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 subd., (a).)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4^th 1426.)

Discussion

As the court’s September 28, 2022 discussed the various methods of service of summons and complaint, the court will not revisit the methods. The court will only address service by mail as the proof of service (POS) indicates Defendant was purportedly served via mail.

A plaintiff is also authorized to simply mail a defendant a copy of the summons and complaint, with a request to acknowledge receipt thereof. (Code Civ. Proc., § 415.30.)

Here, Specially Appearing Defendant avers that he has not received a copy of the Summons and Complaint in the mail. (Motion pp. 5-6.) Additionally, the summons and complaint does not provide copies of a written acknowledgement of receipt.

Therefore, Plaintiff has failed to serve Defendant via first class mail.

That said, Plaintiff filed various new proofs of service, rendering the instant motion moot.

To the extent that Defendant seeks dismissal of Plaintiff’s action due to the failure to timely prosecute (Motion p. 7:8-9), the court will briefly elaborate, though Defendant provides no citation to support his sought relief. California Rules of Court Rule 3.110(b) provides that “The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.” (emphasis added).

Here, 60 days from January 14, 2022 (date complaint filed), is March 15, 2022. However, to date (which is nearly one and a half years), Plaintiff has not validly served Defendant. But a trial court may dismiss an action if the summons and complaint have not been served within 60 days provided that both the failure to serve is the fault of the client and not the attorney (here, condition met as Plaintiff is pro per) and (2) less severe sanctions have not been effective. (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1063 (emphasis added); see also Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1430-31 [“California Rules of Court rule 372 allows the court on its own motion to dismiss an action pursuant to Code of Civil Procedure section 583.410 for delay in prosecution ‘... if the action has not been brought to trial ... within two years after the action was commenced against the defendant.” (Cal.Rules of Court, rule 372.) . . . Additionally, the express policy of the state is to favor trial on the merits over dismissal for failure to proceed with reasonable diligence. (Code Civ.Proc., § 583.130.)] (emphasis added).

Therefore, as it has been less than two years since the action and the court has not entertained less severe sanctions than dismissal of the case, the court does not do so at this juncture.

Conclusion

Based on the foregoing, the motion is MOOT.