Judge: Daniel M. Crowley, Case: 23STCV05441, Date: 2023-11-02 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff  via the Department's email: SMCdept71@lacourt.org before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Case Number: 23STCV05441    Hearing Date: November 2, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Specially Appearing Defendants Jason Rubin’s, as trustee of the Cira Ross Qualified Domestic Trust, and Thomas K. Bourke’s motion to quash service of summons is granted.

Specially Appearing Defendants Jason Rubin, as trustee of the Cira Ross Qualified Domestic Trust [erroneously sued in his individual capacity] (“Rubin”) and Thomas K. Bourke (“Bourke”) (collectively, “Defendants”) move for an order quashing service of the summons on the grounds Plaintiff Michael Tusken (“Tusken”) (“Plaintiff”) has failed to obtain jurisdiction over Defendants in that the purported service upon Defendants was defective.  (Notice of Motion, pg. 2; C.C.P. §418.10(a)(1).)

Background

On March 13, 2023, Plaintiff filed the operative complaint against Defendants.  Defendants are judgment creditors of Plaintiff’s client and have each filed notices of judgment lien in a separate lawsuit currently on appeal.  (See Decl. of Yost ¶3.)  In this action, Plaintiff alleges a single cause of action seeking a declaration that his purported contractual attorney lien on settlement proceeds secured in that separate lawsuit is valid and has priority over Defendants’ judgment liens.  (See Decl. of Yost ¶4.) 

On June 15, 2023, Defendants made a special appearance to file the instant motion.  On October 20, 2023, Plaintiff filed his opposition.  On October 26, 2023, Defendants filed their reply.

Motion to Quash

“A defendant, on or before the day of his or her time to plead . . . 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.”  (C.C.P. §418.10(a)(1).)  By filing such motion, “a defendant makes a special appearance for the narrow purpose of contesting personal jurisdiction where the summons is defective.”  (Stancil v. Superior Court (2021) 11 Cal.5th 381, 393.)

“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.”  (Floveyer International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793; see also Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961 [“To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.”].) “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.”  (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160, internal quotations omitted.)

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (C.C.P. §415.10.)  “‘[P]ersonal service,’ generally speaking, means the actual delivery of the process to the defendant in person . . . .”  (Wilson v. Eddy (1969) 2 Cal.App.3d 613, 617.)  Personal delivery is the “preferred way to serve a defendant” because it “is the most likely to ensure actual notice to the defendant.”  (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 336.)

Here, neither Defendant has been personally served.  Defendants submitted three separate declarations “undermining” the proofs of service filed by the Plaintiff and demonstrating that the Plaintiff’s process server did not serve them personally as falsely claimed in the proofs of service.  (See Decl. of Rubin; Decl. of Bourke; Decl. of Ajar.)  Accordingly, the presumption of proper service is disregarded, and the factual question of valid service decided without regard to that presumption with the burden of ultimate proof falling on Plaintiff.  (See Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 680-681; Pellerin v. Kern County Employees’ Retirement Assn. (2006) 145 Cal.App.4th 1099, 1106.)  In his opposition, Plaintiff fails to meet his burden.

Accordingly, Specially Appearing Defendants’ motion to quash is granted.

Conclusion

Specially Appearing Defendants’ motion to quash service of summons is granted.

Plaintiff to give notice.

Dated:  November _____, 2023