Judge: H. Jay Ford, III, Case: 22SMCV01647, Date: 2023-03-28 Tentative Ruling

Case Number: 22SMCV01647    Hearing Date: March 28, 2023    Dept: O

Case Name:  NDM Enterprise, LLC v. Hanna, et al.

SUBJECT:                 MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Bishoy Hanna

RESP. PARTY:         Plaintiff NDM Enterprise, LLC

TENTATIVE RULING

            Defendant Bishoy Hann’s Motion to Quash Service of Summons is GRANTED. 

            It is always the plaintiff’s burden to establish the existence of jurisdiction.  See Strathvale Holdings v. E.B.H. (2005) 126 Cl.App.4^th 1241, 1249.  However, a properly executed proof of service gives rise to a rebuttable presumption of proper personal service.  See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441-1442.

            Defendant rebuts any presumption of proper personal service.  Defendant submits evidence that he was not in Valencia, CA when the alleged personal service took place on 11-20-22.  Defendant submits the declaration of Michael Hayden as evidence that he was in Santa Monica, CA at the baptism Hann’s baby boy.  See Memo of Points and Authorities ISO Motion to Quash, Dec. M. Hayden, 1:10-14. 

            In response, Plaintiff does not challenge Defendant’s position that he was not personally served.  Plaintiff only argues that Defendant waived all objections based on service and personal jurisdiction when he appeared ex parte to advance the hearing date on this motion. However, appearance at an ex parte hearing in which relief is sought or to oppose an ex parte application for a provision remedy.  “An appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance and does not constitute a waiver of the right to make a motion under Section 418.10.” CCP §418.11; see also Canaan Taiwanese Christian Church v. All World Mission Ministries (2012) 211 Cal.App.4^th 1115, 1126-1127.