Judge: Gregory Keosian, Case: 22STCV10204, Date: 2022-08-12 Tentative Ruling

Case Number: 22STCV10204    Hearing Date: August 12, 2022    Dept: 61

Defendants Eric and Manuela Chamchoum’s Motion to Quash Service of Summons is GRANTED.

I.        MOTION TO QUASH SERVICE OF SUMMONS

Code of Civil Procedure section 418.10, subd. (a)(1) 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 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.”

“‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)

While courts are not required to accept self-serving evidence — such as declarations that one was not served — submitted to support a motion to quash, facial defects of the proof of service will rebut its presumption of proper service. (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 390.) The burden is on a plaintiff to prove facts showing that service was effective. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

Substitute service is allowed when personal service cannot be effect by reasonable diligence by leaving the summons and complaint at the “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge,” and by subsequently mailing a copy of the summons and complaint by first-class mail to the person to be served at the place the summons and complaint were left. (Code Civ. Proc., § 415.20, subd. (b).)

Defendants Eric and Manuela Chamchoum (Defendants) move to quash the service of summons made against them via substitute service, as indicated in proofs of service filed on May 3, 2022. These proofs of service indicate that the summons and complaint were served upon an occupant at an address on Linda Flora Drive in Los Angeles, after three prior attempts at service. But Defendants argue that this address is a rental property occupied by a tenant of theirs, and which is owned by Defendants in their capacities as trustees for a trust. (Motion at pp. 4–6.) Thus Defendants declare that the property is not their dwelling house, usual place of abode, usual place of business, or usual mailing address. (Manuela Decl. ¶¶ 3–5; Eric Decl. ¶¶ 3–6.) Eric Chamchoum in fact testifies that he lives outside the country. (Eric Decl. ¶ 5.)

Plaintiff in opposition argues that Defendants’ declarations do not include verifications under Code of Civil Procedure § 2015.5. (Opposition at pp. 3–5.) This defect, however, has been remedied by amended declarations served prior to the reply on this motion, which contains verification that the testimony is offered under penalty of perjury of the laws of the State of California. (See Reply Exhs. A, B.) Plaintiff otherwise argues only that Defendants have received actual notice of this suit, when authority holds that notice in the absence of substantial compliance with service statutes is insufficient. (See MJS Enterprises, Inc., supra, 153 Cal.App.3d at p. 557.)

When jurisdiction is challenged via motion to quash, it is the plaintiff’s burden to establish that service was accomplished. (Summers, supra,  140 Cal.App.4th at p. 413.) Plaintiffs here have made no effort to establish that service was done in compliance with Code of Civil Procedure § 415.20.

The motion to quash is therefore GRANTED.