Judge: H. Jay Ford, III, Case: 24SMCV03160, Date: 2024-10-17 Tentative Ruling

Case Number: 24SMCV03160    Hearing Date: October 17, 2024    Dept: O

  Case Name:  Scovell v. City of Santa Monica

SUBJECT:                 MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Specially Appearing Defendants Dustin Braschi, Jenna Grigsby, Santa Monica Police Department, City Of Santa Monica

RESP. PARTY:         Plaintiff Philice Scovell

TENTATIVE RULING

            Specially Appearing Defendants Dustin Braschi, Jenna Grigsby, Santa Monica Police Department, and City Of Santa Monicas’ Motion to Quash Service of Summons is GRANTED. 

Plaintiff has failed to show the summons and complaint have been properly served on any of the defendants.  Service of the summons and complaint solely by certified mail with a return receipt is not proper service on these defendants. None of the defendants have agreed to accept service by mail, nor have they executed any acknowledgment of receipt of the summons and complaint under Code of Civil Procedure §415.30.   

REASONING

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.)

            The Code of Civil Procedure authorizes the Court to quash the service of a summons and complaint due to lack of personal jurisdiction.

(a) 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.

Cal. Code Civ. Proc. 418.10.

There are five separate methods to effect service within the Code of Civil procedure including:

(1) The traditional method of personal delivery (Section 415.10). (2) Delivery of process to a specified person usually at a defendant's abode or place of business (Section 415.20). (3) Delivery of process by ordinary first-class mail or airmail with return acknowledgement of receipt (Section 415.30). (4) Delivery of process by registered or certified airmail with return receipt (Section 415.40). (5) Service by publication (Section 415.50). Except for delivery by registered or certified mail, these methods may be used to effectuate service either within or outside this state. (Section 413.10.) Service by registered or certified airmail may be used to effectuate service only on a person outside this state. (Section 415.40.)

(Code Civ. Proc., § 415.10, judicial council comment.)

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.)

            Regarding Substitute Service, California Code of Civil Procedure §415.20(b) provides:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's 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 of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(Code Civ. Proc., § 415.20, emphasis added.)

“[A]n individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint cannot with reasonable diligence be personally delivered to the individual defendant . . . . [with] [t]wo or three attempts to personally serve a defendant at a proper place ordinarily qualif[ying] as reasonable diligence.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

            Specially Appearing Defendants Dustin Braschi, Jenna Grigsby, Santa Monica Police Department, City Of Santa Monica (“Defendants”) rebut any presumption of proper personal service.  In her 8-16-24 opposition, Plaintiff Philice Scovell (“Scovell”) states ““On or about July 10th, 2024 paperwork was resubmitted and filed with the courts and than [sic] e-filed electronically to serve all defendants through electronic service once all papers were approved by clerk.” (8-16-24 Oppo., p. 2.) Defendants did not agree or consent to personal service via email, and thus personal service was not properly effected. (See Grigsby Decl., ¶ 3; Braschi Decl., ¶ 3; Seeman Decl., ¶ 4; Motta Decl., ¶ 5; Ford Decl., ¶ 5.)

            Defendants establish that Scovell failed to effect substitute service. Scovell failed to identify when the substitute service was purportedly completed, where or how the papers were delivered, she did not attach a declaration of diligence regarding attempts at personal service, and did not certify that she mailed the papers after leaving them at the Defendants’ office or home. (See 8-28-24 Proof of Service by Mail.) Thus, Scovell failed to establish substitute service pursuant to CCP § 415.20.

            Additionally, Defendants establish that Scovell failed to properly effect service by mail pursuant to CCP § 415.30. CCP § 415.30 provides “[a] copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender . . . . Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.” (Code Civ. Proc., § 415.30, subd. (a), (c).) Defendants declare that they did not sign or return an acknowledgment of receipt to Scovelli. (See Grigsby Decl., ¶ 3; Braschi Decl., ¶ 3; Seeman Decl., ¶ 3; Ford Decl., ¶ 4.)