Judge: Gary I. Micon, Case: 24CHCV01641, Date: 2024-08-29 Tentative Ruling

Case Number: 24CHCV01641    Hearing Date: August 29, 2024    Dept: F43

U.S. Bank Trust National Association vs. Beniamin Shahinyan, et al.

Trial Date: N/A

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant Beniamin Shahinyan

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

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

RULING: Motion is denied without prejudice.

SUMMARY OF ACTION

This case, filed by Plaintiff U.S. Bank Trust National Association (Plaintiff) on April 30, 2024, is related to the cancellation of a loan.

On June 20, 2024, self-represented defendant Beniaman Shahinyan (Defendant) filed a motion to quash service of summons. Defendant, who is now a New York resident, claims that some papers were left in the doorjamb of a friend’s home in California. Defendant claims that these papers were the service papers for this case. Defendant argues in his motion that this service was improper because there has been no personal service on Defendant, nor was substituted service proper. Defendant also argues that there has been no posting and mailing of the complaint by Plaintiff. Defendant does not attach the service papers to his motion, nor has plaintiff filed any proof of service with the Court.

No opposition has been filed to Defendant’s motion.

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.)

Plaintiff has not yet filed proof of service with the Court and Defendant did not attach the alleged service papers to his motion. Because plaintiff has not yet filed proof of service with the court, the court has not yet acquired jurisdiction over the defendant.  Notably, plaintiff has not opposed this motion or otherwise contended that it has effected service.  As a result, the court deems this motion premature and will deny it without prejudice.

Moving party to give notice.