Judge: Daniel M. Crowley, Case: 22STCV15881, Date: 2022-09-20 Tentative Ruling
Case Number: 22STCV15881 Hearing Date: September 20, 2022 Dept: 28
Specially Appearing Defendant Miguel Jeronimo’s Motion to Quash Service of Summons and Complaint.
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On May 12, 2022, Plaintiff Carmen Tovar (“Tovar”) and Fernando Sabina, Jr. (“Sabina”) filed this action against Defendant Miguel Jeronimo (“Defendant”) for motor vehicle and general negligence.
On July 14, 2022, Specially Appearing Defendant filed a Motion to Quash Service of Summons to be heard on September 20, 2022. On August 22, 2022, Plaintiffs filed an opposition.
Trial is currently set for November 9, 2023.
PARTY’S REQUESTS
Defendant requests the Court quash service of Plaintiff’s summons and complaint against Defendant on the basis that service was not made according to any statutorily method for service of summons.
Plaintiffs request 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 § 415.10 provides that “[a] summons may be served by personal delivery of the summons and of the complaint to the person to be served. Service of summons in this manner is deemed complete at the time of such delivery.” A party may also serve the complaint and summons via other statutorily authorized means, but service of both the complaint and summons is necessary.
DISCUSSION
Plaintiff’s proof of service states that Lilly Jeronimo, a co-occupant, was served with the service of summons on May 17, 2022. Defendant disputes this service as Lilly Jeronimo is Defendant’s sister—they do not live together and have not spoken in two years. Defendant does not believe Lilly knows his current home address. He did not consent to Lilly accepting service on his behalf and she does not live at the address, meaning she would not be a proper party to serve, pursuant to CCP §415.20. Defendant is unaware of any else who may match the provided description and would have been at his home at the date and time of service.
Plaintiffs argue that this motion is untimely, because it was made after Defendant’s last day to plead; however, if Defendant was never properly served, Defendant’s motion would not be untimely.
Plaintiffs have the burden to establish valid statutory summons; Plaintiffs state that Plaintiffs’ registered process server provided a sworn statement that Lilly was at Defendant’s residence and stated she lived with Defendant at the subject address. Merely being told someone is an occupant is not enough to establish proper service. Plaintiffs have not provided any evidence that Lilly was actually an occupant, and, as such, have failed to establish a valid statutory summons in the fact of Defendant’s declaration. The Court grants the motion.
CONCLUSION
Specially Appearing Defendant Miguel Jeronimo’s Motion to Quash Service of Summons and Complaint is GRANTED. Service of summons and the complaint on Defendant 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.