Judge: Daniel M. Crowley, Case: 19STCV25130, Date: 2023-01-25 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Case Number: 19STCV25130    Hearing Date: January 25, 2023    Dept: 28

Specially Appearing Defendant Katy Silvester’s Motion to Quash Service of Summons and Complaint

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On July 18, 2019, Plaintiff Anna Larmie (“Plaintiff”) filed this action against Defendant Youthfill MD, XIX LLC (“Youthfill”) for general negligence. Plaintiff later amended the complaint to include Defendant Katy Silvester (“Silvester”).

On May 24, 2021, the clerk entered default against Youthfill. On August 24, 2021, the Court vacate default. On September 22, 2021, Youthfill filed an answer.

On November 3, 2022, Specially Appearing Defendant Silvester filed a Motion to Quash Service of Summons to be heard on January 4, 2023. The Court continued the hearing on the motion to January 25, 2023. On January 10, 2023, Plaintiff filed an opposition.

PARTY’S REQUESTS

Silvester requests the Court quash service of summons and complaint upon Silvester on the grounds that Silvester was not properly served.

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.) 

A defendant may file a motion to quash a service of summons on the ground of lack of jurisdiction of the court over said defendant. CCP § 418.10 (a). A motion made under CCP § 418.10 does not constitute an appearance unless a court denies the motion.

“Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfied the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.” (Engebretson & Co. v. Harrison (1981) 125 Cal. App. 3d 436, 443.)

CCP 415.20(b) provides: “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.

DISCUSSION

Plaintiff’s process server indicates he served a “John Doe” at Silvester’s residence. Silvester’s one and only roommate, Sebastian Gonzalez Ahlich (“Declarant”) submitted a Declaration stating he was not home at the time of the alleged service and that the description on the proof of service does not match his physical description. He also stated that he was never served any documents relating to this case.

Plaintiff argues that the motion is not timely, as the notice designated a time more than 30 days after filing of the notice. This is not due to Silvester’s failure, but rather due to the Court’s impacted calendar. The Court will not punish Silvester for its own calendar.

Plaintiff argues that it does not matter that Silvester provided a declaration from her roommate saying he does not match the description, because Silvester does not argue the address is wrong. The Court disagrees—if someone accepted service who was not entitled to accept service or the process server potentially served the wrong address, service was not properly effectuated. The declaration rebuts Plaintiff’s proof of service. The Court grants the motion.

CONCLUSION

Specially Appearing Defendant Katy Silvester’s Motion to Quash Service of Summons and Complaint is GRANTED. Service of summons and the complaint on Silvester is quashed.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.