Judge: Deirdre Hill, Case: 22TRCV00370, Date: 2022-07-26 Tentative Ruling

Case Number: 22TRCV00370    Hearing Date: July 26, 2022    Dept: M

Hearing Date:                          July 26, 2022

Moving Parties:                      Defendants Alpine Village and Alpine Market

Responding Party:                  None

Motion to Quash Service of Summons

The court considered the moving papers.  No opposition was filed.

RULING

            The motion is GRANTED.  The proof of service of summons filed on May 27, 2022 is quashed.

BACKGROUND

            On May 12, 2022, Mia Morgan White (self-represented) filed a complaint against Alpine Village and Alpine Market for motor vehicle negligence, general negligence, premises liability, and “hate crime after incident.”

The court notes that plaintiff did not attach the “causes of action” forms to the complaint.  The court also notes that the caption to the complaint confusingly combines defendants’ names, and the complaint does not identify the defendants by name at para. 1.

LEGAL AUTHORITY

CCP §418.10 states:  “(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 for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”  This section provides the exclusive procedure for challenging personal jurisdiction at the outset.  Roy v. Superior Court (2005) 127 Cal. App. 4th 337, 342.  Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist.  Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

Under Evidence Code § 647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  Under Evidence Code § 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.  Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

DISCUSSION

            Defendants Alpine Village and Alpine Market request that the court quash service of the summons and complaint on the ground that they were not properly served.

            The proof of service filed on May 27, 2022 indicates that “Alpine Village Alpine Market Does 1 to 5” were served at 833 Torrance Blvd., Torrance, CA 90502 by “personal service” on May 27, 2022 by a non-registered process server.

            Defendants explain that Alpine Village is a California corporation registered with the California Secretary of State.  Alpine Village’s business address is 833 W. Torrance Blvd., Torrance, CA 90502 and its designated agent for service of process is Paul R. Pearlson, 880 Apollo Street, Suite 230, El Segundo, CA.  Alpine Market is also a California corporation registered with the California Secretary of State and its business address is the same as above along with the same designated agent for service of process.

            The proof of service, as argued by defendants, is defective on several grounds.  Plaintiff filed only one proof of service confusingly identifying “party served” as “Alpine Village Alpine Market Does 1 to 5” although two defendants were purportedly identified as defendants in the complaint.  Further, the proof of service does not state that defendants were served pursuant to CCP §416.10 (corporations) at para. 6.d.  Rather it states that defendants were provided “Notice to the Person Served” under fictitious names at 6.b.  Also, the proof of service does not identify at 3.b. the person served on behalf of the entity or as an authorized agent.  The box was marked for “personal service,” but personal service was not effectuated.

CCP §416.10 states:  “A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:  (a) To the person designated as agent for service of process . . . . (b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process. . . .”

CCP §415.20(a) states, “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 416.10, . . . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, . . . with the person apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. . . .”

            Accordingly, the motion is GRANTED.

            Defendants are ordered to give notice of the ruling.