Judge: Gary I. Micon, Case: 23CHCV00429, Date: 2024-05-15 Tentative Ruling

Case Number: 23CHCV00429    Hearing Date: May 15, 2024    Dept: F43

Dept. F43

Date: 5-15-24

Case #23CHCV00429, David Avdalian vs. Jennifer Rachael Bauer

Trial Date: N/A

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant Jennifer Rachael Bauer

RESPONDING PARTY: Plaintiff David Avdalian

RELIEF REQUESTED

Defendant has requested that the Court quash the service of summons.

RULING: Motion is granted.

SUMMARY OF ACTION

This is a personal injury case involving a motor vehicle accident filed on February 15, 2023. Plaintiff David Avdalian (Plaintiff) filed this action against Defendant Jennifer Rachael Bauer. When this action was commenced, the process server made several attempts to serve Defendant at 2246 N Alvarado St., Los Angeles. At the third attempt, the process server was told by an unnamed resident of the property that the address is not valid for the subject Defendant. The process server attempted three more times to serve Defendant at this address. For the sixth attempt on October 17, 2023, the process server indicates that he served the papers on the unidentified resident, a woman, via substituted service, per the client’s (Plaintiff’s counsel) instructions. (Bell Decl., Ex. A.) The process server also mailed the papers to that address after serving via substituted service.

On October 26, 2023, Plaintiff’s counsel emailed Defendant’s insurance carrier to let him know that Plaintiff had served Defendant in the two ways discussed above. (Shahinyan Decl., ¶ 7, Ex. C.) On January 26, 2024, Plaintiff’s counsel received a letter from Defendant’s insurance carrier advising them that the Law Offices of Borton Petrini were appointed to respond to the suit and gave him the contact information for Defendant’s attorney. (Shahinyan Decl., ¶ 8, Ex. D.) On February 8 and February 29, 2024, Plaintiff’s counsel served Defendant’s counsel with case filings related to the Case Management Conference. (Shahinyan Decl., ¶¶ 9, 10.)

On February 29, 2024, the same day that Plaintiff’s counsel emailed the Notice of Court Order for the Case Management Conference, Defendant filed this motion to quash this service of summons, arguing that Defendant has not lived at the address where she was allegedly served since the 1990s and that she does not know the person who was served. Defendant also argues that Plaintiff has not substantially complied with the statutory requirements for service of process.

Plaintiff argues in his opposition that Defendant was properly served at her residential address, though Plaintiff does not provide any indication as to why he believed that this is Defendant’s current address. Plaintiff also argues that Defendant has actual notice of this action.

Defendant has not filed a reply to Plaintiff’s opposition.  

ANALYSIS

The return of process is prima facie evidence of proper service. (Evidence Code § 647; Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) Where proof of service exists, the burden is then on the other party to produce evidence that they were not, in fact, served. (See Evidence Code § 604; Palm Property Investments, LLC v. Yadegar 194 Cal.App.4th 1419.) Simply denying receipt of service is not sufficient to overcome the presumption of service. (Palm Property, 194 Cal.App.4th at 1428.)

While there is return of process for both the substituted service and the service by mail, Defendant argues that these methods of service did not provide her with actual notice of the suit. Plaintiff has not indicated why he believes that the address at which Defendant was served via substituted service and service by mail was her current address. In fact, Defendant’s sworn declaration states that she has never been served with the summons and complaint, that she has not lived at 2246 N. Alvarado Street since the late 1990s, and that she does not know the person who accepted service of process nor has she authorized any persons at that address to accept service on her behalf. (Bauer Decl., ¶¶ 3, 4, 7, 8, 9, 10, 11.) In this case, where even the process server indicated that he was told that it was not a valid address and based on Defendant’s sworn declaration, there appears to be evidence to overcome the presumption of service.

As for Plaintiff’s argument that Defendant had actual notice of the action, Plaintiff appears to be referring to the substituted service and the service by mail. However, counsel for Defendant was appointed in January 2024 after Plaintiff’s counsel had informed Defendant’s insurance carrier of the action back in October 2023. It was only after Plaintiff’s counsel had emailed Defendant’s counsel the Case Management Conference documents that Defendant filed this motion. Based on this timeline of events, it appears that Defendant likely did not have actual notice of the action until after Plaintiff’s counsel had emailed Defendant’s counsel in February. Furthermore, Defendant swore in her declaration that she has never been served with the summons and complaint. (Bauer Decl., ¶¶ 8, 9, 10, 11.)

Based on the foregoing, Defendant’s motion to quash service of summons is granted.

Moving party to give notice.