Judge: Curtis A. Kin, Case: 22STCP04269, Date: 2023-02-16 Tentative Ruling

Case Number: 22STCP04269    Hearing Date: February 16, 2023    Dept: 72

MOTION TO QUASH SERVICE OF SUMMONS

PETITION TO CONFIRM ARBITRATION AWARD

Date:               2/16/23 (9:30 AM)

Case:               Marcelo Militello, et al. v. Adam Delmonte (22STCP04269)

TENTATIVE RULING:

Respondent Adam Delmonte’s Motion to Quash Service of Summons and Petitioners Marcelo Militello and Shauneen Militello’s Petition to Confirm Arbitration Award are both CONTINUED.

Respondent Adam Delmonte moves to quash service of summons. Respondent maintains that Kim McGinnis, the person who signed the proof of service of summons filed on December 9, 2022, is not a registered process server, contrary to the representation in the proof of service. Respondent also argues that the representation of personal service on December 7, 2022 contained in the proof of service is false.

As a preliminary matter, respondent filed a reply on February 15, 2023, one court day before the hearing. Based on the hearing date of February 16, 2023, the deadline to serve and file the reply was February 8, 2022, five court days before the hearing. (See CCP § 1005(b).) No proof of service was attached to the reply. Considering that the declarations in support of the reply were executed on February 14, 2022, the reply could not have been served more than two court days before the hearing. The Court questions whether petitioners Marcelo Militello and Shauneen Militello were even served with the Reply at all.  Regardless, in light the decision to continue the hearing on the motion to quash, the Court exercises its discretion and considers the reply and supporting declarations. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)   

As another preliminary matter, petitioners contend that the instant motion is untimely because it was filed on January 9, 2023, more than 30 days of the purported personal service on December 7, 2022. (S. Militello Decl. ¶ 6 & Ex. C [proof of service of summons]; CCP § 418.10(a) [“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 … [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her”].) The deadline to file the motion to quash was January 6, 2023. (CCP § 430.40(a) [30 days from service of complaint to demur].) Counsel for respondent, however, avers that he discovered the existence of the instant petition to confirm arbitration on January 9, 2023 upon searching for respondent’s name on the Court’s Case Name Search resource. (Silva Motion Decl. ¶ 2.) Petitioners dispute this assertion, as counsel for respondent averred that he was retained in December 2022. (Silva Motion Decl. ¶ 1.) Counsel for respondent states that he was retained for a matter different than the instant proceeding. (Silva Reply Decl. ¶¶ 1, 2.) Under these circumstances, especially considering that the instant motion was filed only one court day late, the Court finds good cause to consider this motion.

“When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-40.)

In the moving papers, respondent argued that the presumption of valid service afforded under Evidence Code § 647 does not apply because McGinnis was not a registered process server at the time of service. Counsel for respondent averred that someone from the Los Angeles County Clerk’s office said that based on Registration No. 2015093064, the number that McGinnis provided on the proof of service, McGinnis’ registration expired on April 5, 2021. (Silva Motion Decl. ¶ 6.)

In support of the opposition, McGinnis avers that her registration was renewed on May 4, 2021 and expires on April 5, 2023. (McGinnis Decl. ¶¶ 1, 12.) McGinnis provides a copy of the process server identification card issued to her by the County Clerk. (McGinnis Decl. ¶ 1 & Ex. A.)

In the reply, respondent appears to concede that McGinnis is a registered process server. Counsel for respondent avers that during the previous conversation with the County Clerk’s office, he was not made aware of a new filing number associated with McGinnis’ current registration. (Silva Reply Decl. ¶ 11 [Filing Number 202102530]; cf. McGinnis Decl. ¶ 12; S. Militello Decl. ¶ 12 & Ex. F.) Counsel for respondent explains that he later learned that when a process server allows their registration to lapse, if the process server renews the registration within three years of the lapsed date, the preexisting registration number is used. (Silva Reply Decl. ¶ 11.) Counsel for respondent’s contention in the moving papers appears to be based on an outdated filing number associated with McGinnis’ registration. (Silva Reply Decl. ¶ 9 & Ex. E [copy of Certificate of Registration as a Process Server associated with filing number 2019091293].)

For the foregoing reasons, because the proof of service of summons filed on December 9, 2022 was signed by a registered process server, there is a presumption of valid service that must be overcome by the party seeking to defeat service of process. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.)

According to the proof of service of process, respondent was personally served on December 7, 2022 at 7:35 p.m. at 17540 Dearborn Street, Northridge, CA 91325. (S. Militello Decl. ¶ 6 & Ex. C.) Respondent contends that he was never served any summons or documents related to the instant proceeding on that date or time, or at any other place. (A. Delmonte Decl. ¶ 4.) Respondent maintains that he was at his mother’s house at 8518 Comanche Ave. in Winnetka, CA 91306 on December 7, 2022 at 7:35 p.m.

McGinnis declares that, on December 7, 2022 at 7:35 p.m., she knocked at the front door at the Northridge address. (McGinnis Decl. ¶¶ 5, 6.) McGinnis asked the woman who answered, purportedly respondent’s wife, if “Adam” was home. (McGinnis Decl. ¶ 6.) McGinnis saw a man standing behind the woman. (McGinnis Decl. ¶ 6.) The man purportedly stated that he was Adam. (Id.) McGinnis then attempted to hand the summons to the man. (McGinnis Decl. ¶ 6.) The man then moved his hands, causing the documents to fall. (McGinnis Decl. ¶ 6.) The man purportedly said, “Adam doesn’t live here, I’m actually his brother.” (McGinnis Decl. ¶ 6.) McGinnis maintains that the man was Adam based on the physical description she was provided. ((McGinnis Decl. ¶ 4.)

In the reply, respondent submits the declaration of William Delmonte, respondent’s brother. Respondent’s brother states that, on the evening of December 7, 2022, he was visiting his brother at the Northridge address when respondent left to check on his mother at the Winnetka address. (W. Delmonte Decl. ¶ 2.) Respondent purportedly asked the brother to stay and help respondent’s wife manage their children. (W. Delmonte Decl. ¶ 3.) When a woman knocked at the door between 7:00 p.m. and 8:00 p.m., respondent’s wife answered the door, which was behind a dead bolted screen door. (W. Delmonte Decl. ¶¶ 5, 6.) The brother maintains that after the woman asked in an “aggressive tone” if respondent was home, he answered through a deadbolted screen door that respondent was not home and that he was respondent’s brother. (W. Delmonte Decl. ¶ 7.) Upon seeing the woman make a “sudden and aggressive motion” for her purse, the brother slammed the door shut not knowing for what the woman was reaching. (W. Delmonte Decl. ¶ 8.)

Under these circumstances, the Court believes an evidentiary hearing is necessary to resolve the statements made in the competing declarations and assess the credibility of the declarants concerning whether respondent was personally served with the summons and petition to confirm arbitration award.

Accordingly, the motion to quash service of summons is CONTINUED to ___________________ at ___________ in Department 72 (Stanley Mosk Courthouse) to allow the Court to conduct an evidentiary hearing where the parties can conduct examination and cross-examination of the pertinent witnesses.

The petition to confirm arbitration award is CONTINUED to the same date and time pending the resolution of the motion to quash service of summons.