Judge: James L. Crandall, Case: 22-01243985, Date: 2022-08-25 Tentative Ruling
1. Demurrer to Complaint:
Motion to Quash and Demurrer
Defendant Michael P. Owens moves to quash service of the summons and complaint, and simultaneously demurs to Plaintiff’s complaint.
The motion to quash service is GRANTED.
In light of the ruling on the motion to quash service, Defendant’s demurrer to the complaint is MOOT.
Code of Civil Procedure section 418.10 provides in part,
(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.
[¶] . . .[¶]
(e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.
(1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.
[¶] . . . [¶]”
Here, Plaintiff contends that by filing a demurrer, Defendant has consented to the Court’s jurisdiction. However, under section 418.10(e), Defendant has not consented to personal jurisdiction merely by filing a demurrer simultaneously with his motion to quash service.
Defendant contends service of summons was ineffective because Plaintiff handed him the summons and complaint. Code of Civil Procedure section 414.10 states, “A summons may be served by any person who is at least 18 years of age and not a party to the action.”
Plaintiff submits a declaration stating that he was present when his friend, Mr. Blair, personally served the summons and complaint on Defendant. Mr. Blair, who is not a party to this lawsuit, declares, “I stood up and walked to [Defendant] and personally handed him the documents serving the summons & complaint on [Defendant] as requested. [Plaintiff] video recorded the exchange.” (Blair Decl., ¶ 2.)
Plaintiff submits a proof of personal service executed by Mr. Blair.
Defendant, on the other hand, declares that Plaintiff, not Mr. Blair, handed him the summons and complaint. “[Plaintiff] himself personally handed me the summons and complaint.” (Owens Decl., ¶ 6.)
Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657–658, holds:
“On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts. [Citation] Where there is no conflict in the evidence, the question of personal jurisdiction is one of law. [Citation]”
“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. 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.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440, citations and fn. omitted.)
“Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)
However, Plaintiff hasn’t shown that Mr. Blair is a registered process server, and even if he was, Defendant has submitted conflicting evidence that could overcome a presumption of proper service.
The parties have submitted directly conflicting declarations as to whether Plaintiff or Mr. Blair handed Defendant the summons and complaint.
If Plaintiff handed the documents to Defendant, then service was ineffective under Code of Civil Procedure section 414.10.
Based on the evidence before the Court at this time, the Court cannot say that Plaintiff’s evidence is more credible than Defendant’s evidence on this point.
Therefore, Plaintiff has not met his burden of proof to demonstrate that service of the summons was proper.
The motion to quash service is granted.
2. Case Management Conference:
No Future Events