Judge: Katherine Chilton, Case: 22STLC00453, Date: 2023-04-27 Tentative Ruling

Case Number: 22STLC00453     Hearing Date: April 27, 2023    Dept: 25

PROCEEDINGS:      QUASH SERVICE OF SUMMONS

MOVING PARTY:     Defendant Antonio Mendez

RESP. PARTY:            None

QUASH SERVICE OF SUMMONS

(CCP § 418.10) 

TENTATIVE RULING: 

Defendant Antonio Mendez’s Motion to Quash Service of Summons is GRANTED.

SERVICE:   

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                   OK 

[X] Correct Address (CCP §§ 1013, 1013a)                                                        OK 

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                        OK

OPPOSITION:           None filed as of April 24, 2023                  [   ] Late            [X] None 

REPLY:                        None filed as of April 24, 2023                  [   ] Late            [X] None 

ANALYSIS: 

                I.    Background 

On January 1, 2022, Plaintiffs Porfirio Flores and Marisol Flores (collectively “Plaintiff”) files an action against Defendants Daniel Mendez and Antonio Mendez (collectively “Defendants”) for motor vehicle negligence.

On December 27, 2022, Defendant Daniel Mendez filed an answer.

On March 29, 2023, Defendant Antonio Mendez filed the instant Motion to Quash Service of Summons (“Motion”). No opposition has been filed.

              II.    Legal Standard  

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]”  (AO Alfa-Bank v. Yakovlev (2018) 21¿Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) 

“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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. § 418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20(a)(3).)  

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.) 

“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.  [Citation.]”  (American Express Centurion Bank v. Zara (2011) 199¿Cal.App.4th 383, 390; Evid. Code § 647.) 

            III.     Discussion  

Defendant Antonio Mendez moves to quash service of summons on the ground that the

summons and complaint were not properly served on Defendant Antonio Mendez. (Mot. P. 2.)

            Defendant Antonio Mendez provides the following reasons for the Motion. The summons and complaint were not left with a competent member of the household at his residence because no one with the description provided in the proof of service (75 year-old Hispanic Male with gray hair, brown eyes and a height of 5’2” weighing 140 lbs) resided in his household. (Mendez Decl. ¶ 5.) No one is his household was ever handed a summons and complaint, and he never received a copy in the mail. (Id. ¶ 6.) He has never been otherwise served in any manner in this case. (Id. ¶ 7.) Because Plaintiffs have not properly served Defendant Antonio Mendez with a copy of the summons and complain, the Court lacks jurisdiction over him at this time. (Motion p. 4.)

            Plaintiffs have not filed proof with the Court that Defendant Antonio Mendez was properly served with the summons and complaint.  Plaintiffs have also not opposed the Motion and have not met their burden to show that service was proper and effective.  Accordingly, the Court grants Defendant Antonio Mendez’s Motion to Quash Service of Summons. 

           IV.Conclusion & Order

For the foregoing reasons, 

Defendant Antonio Mendez’s Motion to Quash Service of Summons is GRANTED.  An Order to Show Cause re: failure to file proof of service is set for June 27, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is ordered to give notice.