Judge: Katherine Chilton, Case: 22STLC07062, Date: 2023-01-05 Tentative Ruling

Case Number: 22STLC07062     Hearing Date: January 5, 2023    Dept: 25

PROCEEDINGS:      MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Lani Hay

RESP. PARTY:         None

MOTION TO QUASH SERVICE OF SUMMONS

(CCP § 418.10)

TENTATIVE RULING:

Defendant Lani Hay’s Motion to Quash Service of Summons is GRANTED.

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:          None filed as of December 23, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of December 23, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 24, 2022, Plaintiff 1012 2nd Street, LLC (“Plaintiff”) filed an action against Defendant Lani Hay (“Defendant”) for breach of contract.

On November 14, 2022, Plaintiff filed Proof of Service of Summons and Complaint by personal service.  (11-14-22 Proof of Personal Service.)

On December 9, 2022, Defendant filed a Motion to Quash Service of Summons (“Motion”).  No opposition has been filed.

On December 13, 2022, Plaintiff filed a First Amended Complaint (“FAC”).

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

On November 14, 2022, Plaintiff filed a Proof of Personal Service indicating that the pleadings had been served on “Lani Hay, Defendant” at 1012 2nd Street, Unit 1, Santa Monica, CA 90403 on November 11, 2022, at 8:02 a.m. by Steven Kris Conner, who is not a registered California process server.  (11-14-22 Proof of Personal Service.)

            On December 9, 2022, Defendant filed the instant Motion to Quash Service of Summons, stating that she is specially appearing to request a Court order quashing service of summons.  (Mot. p. 2.)  Defendant argues that the Summons and Complaint were not properly served on her and thus, the Court does not have personal jurisdiction over Defendant.  (Ibid.)

Defendant contends that she was not served in accordance with Code of Civil Procedure § 415.10, which states that “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.”

First, Defendant states that although she owns the real property located at 1012 2nd Street, Unit 1, Santa Monica, CA 90403, her primary residence is in Centreville, Virginia, where she spends most of her time.  (Hay Decl. ¶ 3.)  Second, Defendant was not at the address indicated on the Proof of Service on November 11, 2022, at 8:02 a.m.; the only person at the address was Defendant’s houseguest Kum Cha.  (Hay Decl. ¶¶ 4-5.)  On the morning of November 11, 2022, Defendant left the property around 7:45 a.m. and returned around 8:15 a.m.  (Ibid. at ¶ 5.)  Furthermore, Defendant’s houseguest, who was not authorized to accept service on behalf of Defendant, heard a knock but did not answer the door or accept anything from a process server.  (Ibid. at ¶¶ 4-6.)  Defendant also argues that Plaintiff cannot claim to have served her by substituted service as none of the requirements of Code of Civil Procedure § 415.20 were satisfied.  (Mot. pp. 9-10.)  Defendant learned of the lawsuit from her attorneys.  (Hays Decl. ¶ 4.)

The Court finds that Defendant’s Motion is timely as it was filed less than 30 days after purported service on Defendant.  Furthermore, the Court finds that the Proof of Personal Service does not establish a presumption affecting the burden of producing evidence of the facts stated in the declaration, as set forth by Evidence Code § 647 because Defendant was not served by a registered process server.  Defendant has submitted a sworn declaration stating that she was not on the premises at the time of purported service and has not been served with the pleadings.  Plaintiff has not opposed Defendant’s Motion.

For these reasons, the Court GRANTS Defendant’s Motion to Quash Service of Summons.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Lani Hay’s Motion to Quash Service of Summons is GRANTED.

Moving party is to give notice.