Judge: Katherine Chilton, Case: 22STLC01019, Date: 2022-10-03 Tentative Ruling

Case Number: 22STLC01019     Hearing Date: October 3, 2022    Dept: 25

PROCEEDINGS:      MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Rudy Dvorak

RESP. PARTY:         Plaintiff Artisan Bloc, LLC

MOTION TO QUASH SERVICE OF SUMMONS

(CCP § 418.10)

TENTATIVE RULING:

Defendant Rudy Dvorak’s Motion to Quash Service of Summons is DENIED.  Defendant is ordered to file responsive pleadings within twenty (20) days of notice of this order.

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:          Filed on September 20, 2022.                           [   ] Late                      [   ] None

REPLY:                     None filed as of September 28, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 16, 2022, Plaintiff Artisan Bloc, LLC (“Plaintiff”) filed an action against Defendant Rudy Dvorak (“Defendant”) for breach of lease.

On July 26, 2022, Plaintiff filed Proof of Service indicating that Defendant was served via personal service by a registered California process server at 1418 W. 9^th Street, Santa Ana, CA 92703 on July 19, 2022, at 6:40 p.m. (7-26-22 Proof of Service.)

On August 12, 2022, Defendant, in propria persona, filed the instant Motion to Quash Service of Summons (“the Motion”).  Plaintiff filed an Opposition on September 20, 2022.

No reply 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.)

III.       Discussion

Here, Defendant seeks to quash service of summons and complaint “on the ground that the court lacks jurisdiction over him because he was not personally served.”  (Mot. p. 3.)  Defendant states that on or about July 19, 2022, he found “the documents strewn in and around the garage” and “may or may not have been present [on the property] when the Summons and Complaint were dropped.”  (Dvorak Decl.)  Defendant further states that he “did not personally receive Plaintiff’s Summons and Complaint,” “[has] not authorized anyone at [his] house to receive legal documents on [his] behalf,” “[is] not aware that there was a substitute service,” and “[has] not received Plaintiff’s Summons and Complaint by mail.”  (Ibid.)

In its Opposition, Plaintiff argues that the instant motion is “filed in bad faith and appears to be a delay tactic” as Defendant has actual notice of the case and Complaint.  (Oppos. p. 1.)  Plaintiff states that being served by a registered process server creates a presumption that service was proper under Evidence Code § 647.  (Ibid. at pp. 1-2.)  Furthermore, Proof of Service describes Defendant’s physical attributes.  (Ibid. at p. 2.)  Defendant also contradicts himself stating, on the one hand, that he may or may not have been present when the documents were served at 6:40 p.m. and, on the other hand, that he did not return to the property until 9:00 p.m.  (Ibid.)

Plaintiff also opposes the Motion on the ground that the hearing date was designated more than 30 days after filing of the notice, in violation of Code of Civil Procedure § 418.10(b), and is thus, a delay tactic and violates Plaintiff’s right to a timely hearing.  (Ibid.)

            “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.)  Here, Plaintiff has established this presumption by filing Proof of Service by a registered process server that indicates the time, date, and address of service, and provides a physical description of Defendant.

            The Court finds that Defendant has not produced sufficient evidence to overcome this presumption.  Defendant states in the Motion that “he found the Summons and Complaint scattered all over the ground near his garage” at about 9:00 p.m. on or about July 19, 2022.  (Mot. p. 4.)  In his declaration, Defendant states that “[o]n or about July 19, 2022 [he] was on and off the property working throughout the day, and returned about 6ish pm to find the documents strewn in and around the garage. [He] may or may not have been present at the time when the Summons and Complaint were dropped.”  (Dvorak Decl.)  Defendant’s contradictory assertions do not overcome the presumption established by the registered process server’s signed Proof of Service.

            Although Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons, here, the Court finds that Defendant was properly served.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

            Thus, Defendant Dvorak’s Motion to Quash Service of Summons is DENIED.  Defendant is ordered to file responsive pleadings within twenty (20) days of notice of this order.

IV.           Conclusion & Order

For the foregoing reasons,

The Motion to Quash Service of Summons filed by Defendant Rudy Dvorak on August 12, 2022, is DENIED.  Defendant is ordered to file responsive pleadings within twenty (20) days of notice of this order.

Moving party is ordered to give notice.