Judge: Elaine W. Mandel, Case: 23SMCV02548, Date: 2024-01-11 Tentative Ruling

Case Number: 23SMCV02548    Hearing Date: March 15, 2024    Dept: P

Tentative Ruling

Tebbens v. McKinnon, et al., Case No. 23SMCV02548

Hearing date March 15, 2024

Defendant McKinnon’s Motion to Quash Service of Summons and Complaint

At an October 12, 2023 case management conference and OSC re: failure to file proof of service, plaintiff indicated defendant McKinnon was evading service. The Court instructed plaintiff to serve or request service by publication. On October 12, 2023 the court granted the application for order to serve via publication.

Defendant moves to quash service. The opposition was filed late but will be considered. Cal Rules of Court, Rule 3.1300, subd. (d). No proof of service was filed with the opposition; plaintiff is to file a proof of service before the hearing.  

Code Civ. Proc., § 418.10, subd. (a)(1) allows a defendant to file a notice of motion “[t]o quash service of summons on the ground of lack of the court over him or her.” Plaintiff has the burden of proving proper service. Service by publication is appropriate where “it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served.” Code Civ. Proc., § 415.50, subd. (a).

Where service by publication is allowed, the court will “order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.” Code Civ. Proc., § 415.50, subd. (b). “If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party.” Ibid. Service by publication “is deemed complete as provided in Section 6064 of the Government Code.” Code Civ. Proc., § 415.50, subd. (c). Thus, a party must publish the summons “once a week for four successive weeks.” Gov. Code, § 6064. “Four publications in a newspaper regularly published once a week or oftener, with at least five days intervening between the respective publication dates not counting such publication dates, are sufficient. Ibid.

Defendant argues plaintiff neither sent a copy of the summons and complaint via certified mail nor filed a proof of service. Schofield Decl., ¶ 4. However, the court considers whether proof of service via publication was proper, as the court signed an order allowing for service via publication, both in the Los Angeles Times and Chicago Tribune, as defendant lives in Chicago.

Exhibit D to the Tebbens declaration is proof of publication that the summons was posted in the Los Angeles Times on December 7, December 14, December 21 and December 28, 2023. Notice in the Los Angeles Times was proper.  

However, plaintiff failed to provide evidence that publication in the Chicago Tribune was properly effectuated. Plaintiff provided a copy of a receipt for a print ad on the Chicago Tribune website; however, the Court cannot ascertain whether service was proper as ordered. Tebbens Decl., Exhibit D. Plaintiff has not shown sufficient evidence that defendant was properly served by publication in the Chicago Tribune, as ordered. Motion to quash GRANTED.