Judge: Gail Killefer, Case: 23STCV26892, Date: 2024-05-22 Tentative Ruling
Case Number: 23STCV26892 Hearing Date: May 22, 2024 Dept: 37
HEARING DATE: Wednesday, May 22, 2023
CASE NUMBER: 23STCV26892
CASE NAME: Lloyd Albert Payne, Jr. v. Avis Budget Group, Inc., et al.
MOVING PARTY: Defendants Avis Budget Group,
Inc. and Joseph Feraro
OPPOSING PARTY: None.
TRIAL DATE: Not Set.
PROOF OF SERVICE: OK
PROCEEDING: Motion to Quash Service of
Summons and Complaint
OPPOSITION: None filed.
REPLY: None
filed.
TENTATIVE: Defendants’ Motion to Quash Service of
Summons and Complaint is granted. Defendants to give notice.
Background
On
November 1, 2023, Lloyd Albert Payne Jr. (“Plaintiff”) filed a Complaint
against Avis Budget Group, Inc. and Joseph Feraro (“Defendants”). The Complaint
pertains to a dispute over real property. Plaintiff filed a Proof of Service of,
inter alia, the summons and complaint by Substituted Service on January 22,
2024.
Defendants
now move to quash the service of summons and complaint. The Motion remains
unopposed.
I. Legal Standard
CCP § 418.10(a) states: “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 or file a motion…[t]o quash service of summon
on the ground of lack of jurisdiction of the court over him or her.”¿¿¿¿
When a defendant moves to quash service of process on
jurisdictional grounds, the plaintiff has the initial burden of demonstrating
facts justifying the exercise of jurisdiction.¿(State of Oregon v. Superior
Court (1994) 24 Cal.App.4th 1550, 1557.)¿If the plaintiff meets his or her
burden, the burden shifts to the defendant to demonstrate that the exercise of
jurisdiction would be unreasonable. (Buchanan v. Soto (2015) 241
Cal.App.4th 1353, 1362. [“When a motion to quash is properly brought, the
burden of proof is placed upon the plaintiff to establish the facts of
jurisdiction by a preponderance of the evidence.”].) This burden must be met by
competent evidence in affidavits and authenticated documentary evidence. (Jewish
Defense Org. v. Superior Court¿(1999) 72 Cal.App.4th 1045, 1055.) “A court
may exercise specific jurisdiction over a nonresident defendant only if: (1)
the defendant has purposefully availed himself or herself of forum benefits;
(2) the controversy is related to or arises out of the defendant’s contacts
with the forum; and (3) the assertion of personal jurisdiction would comport
with fair play and substantial justice.” (Snowey v. Harrah’s Entertainment,
Inc. (2005) 35 Cal.4th 1054, 1062.)¿
II. Discussion
Defendants move to
quash the January 22, 2024, Proof of Service based on the following
deficiencies:
1)
Plaintiff himself served the papers
which is improper.
2)
Plaintiff filed one proof of service
for both Defendants which is improper.
3)
The person served is not specified.
4)
The manner of service was not specified.
5)
The notice to the person served is
incomplete.
6)
The name of the parties purportedly
served does not match the complaint.
The court finds that the
service is improper. CCP § 414.10 specifically requires that the person serving
the summons not be a party to the action. The proof of service also suggests
that service was by mail as section 5.c is checked off but not 5.b for
substitute service. (CCP §§ 425.20,
415.30.) However, service by mail was ineffective because there was no
return of an acknowledgment of service with the court.
“If the party addressed fails to do so, there is no
effective service, he merely becomes liable for the reasonable expenses of
service in a more conventional manner.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199.) Moreover, for
substitute service, the date and time that substitute service occurred is left
blank. Moreover, the clerk of the court rejected the request for entry of
default because the name on the Defendants does not match the names listed on
the Summons and Complaint.
For the reason set forth above, Defendant's
Motion is granted.
Conclusion
Defendants’ Motion to Quash
Service of Summons and Complaint is granted. Defendants to give notice.