Judge: Jon R. Takasugi, Case: BC510798, Date: 2024-05-03 Tentative Ruling

Case Number: BC510798    Hearing Date: May 3, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to quash service of Summons and Complaint is GRANTED.

On 6/3/2013, the Best Service Co. Inc. (Plaintiff) filed suit against Cuauhtemoc Trujillo (Defendant), alleging: (1) breach of contract; and (2) common counts.

Now, Defendant moves to quash service of Summons and Complaint.

Discussion

            Defendant argues that service of the Summons and Complaint must be quashed due to lack of personal jurisdiction for failure to serve Summons and Complaint.

 “A defendant . . . 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. . . .”  CCP § 418.10(a).  A court lacks jurisdiction over a party if there has not been proper service of process. See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.    

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

Here, the Proof of Service states that service was effected on November 17, 2023 by leaving copies thereof with Rosa Mendoza at 1226 S. Record Avenue, Los Angeles, CA 90023.

Defendant submitted evidence that his mother is Rosa Mendoza, and she resides at 1226 S. Record Street. (Trujillo Decl. ¶ 3.) Defendant submitted evidence that he is 48 years old, and has not resided with his mother since 2000, prior to being married. (Id. ¶  4.) He stated that “At no time since the filing of plaintiff's Complaint in this 10 year old case have I resided at 1226 S. Record. My wife and I have four children. I live with my wife and children in our own residence, not with my mother, and not at 1226 S. Record.” (Id.)

            Defendant further states:

Prior to, on and after June 9, 2013, I resided with my wife and children at 4835 Genevieve Avenue, Los Angeles, CA 90041 ("4835 Genevieve"), which is in the Eagle Rock community of Los Angeles. I, my wife and children all received our mail at our residence at 4835 Genevieve. My children attended the local schools in Eagle Rock. My oldest daughter graduated Eagle Rock High School in 2019. My wife, all of my children and I have always resided together, but never at 1226 S. Record. At this time, we no longer reside at the foregoing residence at 4835 Genevieve.

            (Id. ¶ 5.)

            Defendant’s wife also submitted a declaration asserting the same. (See Valencia Decl.)

CCP section 415.20 provides:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) 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.

Here, Plaintiff has not submitted any evidence to indicate that Defendant was served at his dwelling house, usual place of abode, usual place of business, or usual mailing address. Moreover, Plaintiff filed a notice of non-opposition. Accordingly, the preponderance of evidence indicates that service was defective.

Based on the foregoing, Defendant’s motion to quash service of summons and Complaint is granted. Given that this motion could have been avoided by meeting and conferring with Plaintiff regarding service, the Court urges the parties to attempt informal resolution of issues moving forward. 

It is so ordered.

Dated:  May    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.