Judge: H. Jay Ford, III, Case: 20SMCV00343, Date: 2024-02-20 Tentative Ruling

Case Number: 20SMCV00343    Hearing Date: February 20, 2024    Dept: O

  Case Name:  Paperman v. Besser, et al.

SUBJECT:                 MOTION TO QUASH SERVICE OF PROCESS OF THE
FAC AND TO DISMISS FOR LACK OF JURISDICTION

MOVING PARTY:   Specially Appearing Defendants Sean Besser and Samantha Besser

RESP. PARTY:         Plaintiff Debbie Paperman

TENTATIVE RULING

            Specially Appearing Defendants Sean Besser and Samantha Besser’s Motion to Quash Service of Process to the FAC is GRANTED. Specially Appearing Defendants Sean Besser and Samantha Besser’s Motion to Dismiss pursuant to CCP § 583.250 is GRANTED. Plaintiff Debbie Paperman does not meet her burden to prove the existence of proper service on both Defendant Sean Besser and Samantha Besser on either 10-14-22 or 1-29-23.  The case was filed on 3-3-20, and as of 2-15-24 the Bessers have not been properly served, more than three years after the filing, thus the case must be dismissed. The Court orders the case dismissed without prejudice.

            “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” (Code Civ. Proc., § 415.10.)

            “A defendant is under no duty to respond to a defectively served summons. The notice requirement is not satisfied by actual knowledge of the action without service conforming to the statutory requirements, which are to be strictly construed.” (Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111. reh'g denied and opinion modified (Feb. 8, 1990).) “Mere knowledge of the action is not a substitute for service, nor does it raise any estoppel to contest the validity of service.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1049.)

            When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160, citing Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440.)

            “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed. (Code Civ. Proc., § 583.210.) “[W]here summons has not been served and returned and where the defendant has made no general appearance within the three-year period . . . are mandatory and jurisdictional.” (Slaybaugh v. Superior Court (1977) 70 Cal.App.3d 216, 221; see CCP § 583.250)

            Specially Appearing Defendants Sean Besser (“Sean”) and Samantha Besser (“Samantha”, collectively “the Bessers”) move to quash the service of summons of the FAC because neither defendant was personally served or served via substitute service on either 10-27-22 or 1-29-23 as declared by Plaintiff Debbie Paperman’s (“Paperman”) process server. (Motion, pp. 8–10;  Sean Decl., ¶¶ 6–15; Samantha Decl.,¶¶ 5–10.) 

            Paperman argues the Bessers were properly served with the FAC on 10-14-22 when the process server dropped service and summons with Sean, for both Sean and Samantha, when Sean stated Samantha was home and he would receive the papers for her. (See Smith Decl., ¶¶ 3–4, Ex. A.) However, the initial proof of service documents supplied with the FAC show that the process server personally served Sean and Samantha, with no mention of handing all paperwork to Sean with the intention of substitute service on Samantha. (See Smith Decl., ¶ 4, Ex. B; Ackerman Decl., Ex. C.) Furthermore, Paperman does not argue, nor does the record show, that substitute service was effected upon Samantha by mailing the service and summons to the Bessers address after allegedly handing the documents to Sean. (See CCP § §415.20(b) [substitute service statute].)

            The Bessers further argue and provide evidence that the alleged service on 1-29-23 was also ineffective because the Bessers were traveling back to the United States from Europe at the exact time of the purported personal service. (See Sean Decl., ¶¶ 14, 15, Ex. 5–6.) The Court notes that Paperman does not argue or refute the ineffective 1-29-23 service in the opposition but focuses the service argument strictly on the 10-14-22 service which as analyzed above, cannot overcome the Bessers declarations that they never received the service.

            Plaintiff does not meet their burden to prove that the Bessers were personally served on 10-14-22 as alleged by their process server. The Court there are too many inconsistencies within Paperman’s declarations to persuasively overcome the Bessers’ declarations, and attached evidence, that show they were not served on 10-14-22, or on 1-29-23.

            Thus, the Besser’s Motion to Quash is GRANTED.

            The Bessers Motion to Dismiss pursuant to CCP §§ 583.210, 583.250 is GRANTED. The case was filed on 3-3-20, and as of 2-15-24 the Bessers have not been properly served. Thus, since more than three years have passed since the filing of the claim without proper service the case must be dismissed. The Court orders the case dismissed without prejudice.