Judge: Daniel M. Crowley, Case: BC712633, Date: 2022-10-13 Tentative Ruling

Case Number: BC712633    Hearing Date: October 13, 2022    Dept: 28

Defendant Lauricia Lorraine Bustamante’s Motion to Quash Service of Summons and Complaint

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

BACKGROUND

On July 3, 2018, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed this action against Defendants Lauricia Lorraine Bustamante (“Bustamante”) and Wendy Michelle Perez (“Perez”) for subrogation.

On September 14, 2018, Perez filed an answer. On December 17, 2019, the Court dismissed Perez, without prejudice, pursuant to Plaintiff’s request.

On December 3, 2019, the clerk entered default against Bustamante. The Court granted the application for default judgment on September 23, 2020. Default was later vacated on June 13, 2022.

On July 5, 2022, Bustamante filed a Motion to Quash Service of Summons to be heard on July 15, 2022. Plaintiff filed an opposition on July 8, 2022. The Court continued the hearing on the motion to October 13, 2022.

There is no trial date currently set.

PARTY’S REQUESTS

Bustamante requests the Court quash Plaintiff’s service of summons and complaint on Bustamante.

Plaintiff requested the Court continue the motion, initially; Plaintiff has not filed an additional opposition since the continuance was granted.

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

The original summons was served on Bustamante at the address listed on her driver’s license. However, Bustamante was not a resident of this address at the time; she was merely the lease holder and was suffering from homelessness. She was never served or notified of any legal proceedings. The Court previously vacated default due to insufficient service.

Plaintiff’s opposition was based on insufficient notice; however, the Court continued the hearing. Plaintiff did not file any opposition on the merits. The Court grants the motion.

CONCLUSION

Defendant Lauricia Lorraine Bustamante’s Motion to Quash Service of Summons and Complaint is GRANTED. Service of summons and the complaint on Tudor 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.