Judge: Katherine Chilton, Case: 22STLC03546, Date: 2023-04-17 Tentative Ruling
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Case Number: 22STLC03546 Hearing Date: April 17, 2023 Dept: 25
PROCEEDINGS: MOTION TO QUASH SERVICE OF SUMMONS
MOVING PARTY: Defendant
Barney Chinchilla Franco
RESP. PARTY: Plaintiff Rolando Escalon Villanueva
MOTION TO QUASH SERVICE OF SUMMONS
(CCP § 418.10)
TENTATIVE RULING:
Defendant Barney Chinchilla
Franco’s Motion to Quash Service of Summons is DENIED.
SERVICE:
[
] Proof of Service Timely Filed (CRC, rule
3.1300) OK
[ ]
Correct Address (CCP §§ 1013, 1013a) OK
[
] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed on March 30, 2023. [ ] Late [ ] None
REPLY: None filed as
of April 11, 2023. [ ]
Late [X] None
ANALYSIS:
I.
Background
On May 25, 2022, Plaintiff Rolando
Escalon Villanueva (“Plaintiff”) filed an action against Defendant Barney
Chinchilla Franco (“Defendant”) arising out of an alleged motor vehicle
accident on June 10, 2020. No proof of
service of summons and complaint was filed with the Court.
On January 12, 2023, Defendant
filed the instant Motion to Quash Service of Summons (“Motion”). Plaintiff filed an Opposition to the Motion
(“Opposition”) on March 30, 2023. 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.)
“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
Plaintiff
has not filed Proof of Service with the Court; however, he has attached a copy
of the Proof of Service to his Opposition.
(Sverdlov Decl. ¶ 4, Ex. 1.) The Proof of Service indicates that Plaintiff’s
process server personally served Defendant with the Summons and Complaint on
September 19, 2022, at 9:30 a.m. at 9442 Woodford Avenue, Pico Rivera, CA
90660. (Ibid.)
Defendant makes a special
appearance and moves to quash service of summons on the ground that the Summons
and Complaint were never served on him.
(Mot. p. 2; Franco Decl. ¶ 2.) He states that the Proof of Service does not
provide any description of the person served. (Mot. p. 3.)
Thus, “defendant is under no duty to respond to any way to a defectively
served summons” and his knowledge of the lawsuit does not “dispense with the
statutory requirements for service of process.”
(Ibid. at pp. 3-4.)
Plaintiff opposes Defendant’s Motion. Plaintiff argues that the Motion is “filed in
bad faith as a delaying tactic” because it does not comply with Code of Civil
Procedure § 418.l0(b), which requires the hearing on the Motion to be
calendared no later than 30 days after filing of the Notice. (Oppos. pp. 3-4.) Here, the hearing was scheduled 95 days after
the Notice was filed. (Ibid.)
Moreover,
Defendant has received actual notice of the case, defense counsel has
acknowledged receipt of the Summons and Complaint, and requested an extension to
answer the Complaint. (Ibid. at pp.
3, 5; Sverdlov Decl. ¶ 5.) On November 5, 2022, Defendant’s attorney
sent a copy of the Answer to Plaintiff’s attorney via email, “without ever
reserving the right to challenge service.”
(Ibid., Ex. 2.) Ten days
later, on November 15, 2022, defense counsel informed Plaintiff’s attorney that
Defendant is challenging service of summons and complaint. (Ibid. at ¶¶
5-6.)
Plaintiff
also argues that Defendant was personally served on September 19, 2022, and the
proof of service complies with all statutory standards. (Ibid. at ¶
4, Ex. 1.) Given that Defendant was
served by a process service, Evidence Code § 647
applies and thus, there is a rebuttable presumption that service was
proper. (Oppos. pp. 5-7.) Defendant’s declaration “contains only vague
and conclusory allegations of how he had no actual notice of the lawsuit as he
was not properly served,” which are not sufficient to rebut the presumption of
proper service. (Ibid. at p. 7.) The Court notes that Evidence Code § 647 applies to a registered process server; the Proof of
Service filed by Plaintiff indicates that the process server is “not a
registered California process server.”
(Sverdlov Decl. ¶ 4, Ex. 1.)
Finally, Plaintiff retained a registered attorney service
to re-serve Defendant; however, Defendant has been evading service by refusing
to answer the door. (Sverdlov Decl. ¶ 8, Ex. 3.) Plaintiff has attached a declaration of
due diligence of service. (Ibid.)
The Court
finds several problems with the Motion.
First, a motion to quash service of summons must be filed “on or before
the last day of [Defendant’s] time to plead or within any further time that the
court may for good cause allow.” (Code
of Civ. Proc. § 418.10.) A defendant has 30 days after the service of
the summons to file a responsive pleading.
(Code Civ. Proc., § 412.20(a)(3).)
Here, Proof of Service filed by
Plaintiff indicates that service was effectuated on September 19, 2022. (Sverdlov Decl. ¶ 4, Ex. 1.) The instant Motion was filed 115 days after the
service of summons. Moreover, Defendant has
not shown good cause for filing the Motion more than 30 days after service.
Second, as
Plaintiff points out, the hearing was scheduled more than 30 days after filing
of the notice.
Third, Defendant
has submitted a declaration that merely states that he has never been
served. He does not explain whether the
address listed on the Proof of Service is incorrect or provide the Court with
any evidence in support of his Motion.
For these
reasons, the Court does not have a sufficient basis to grant Defendant’s
Motion. Accordingly, Defendant’s Motion
to Quash Service of Summons is DENIED.
IV.
Conclusion
& Order
For the foregoing reasons,
Defendant Barney Chinchilla
Franco’s Motion to Quash Service of Summons is DENIED.
Moving party is to give notice.