Judge: Katherine Chilton, Case: 22STLC07434, Date: 2023-05-01 Tentative Ruling

Case Number: 22STLC07434     Hearing Date: May 1, 2023    Dept: 25

PROCEEDINGS:      MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Antoine Kidd

RESP. PARTY:         Plaintiff Eaglemark Savings Bank

MOTION TO QUASH SERVICE OF SUMMONS

(CCP § 418.10)

TENTATIVE RULING:

Defendant Antoinne Kidd’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 April 25, 2023.                                    [X] Late                       [   ] None

REPLY:                     None filed as of April 27, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On November 4, 2022, Plaintiff Eaglemark Savings Bank, a subsidiary of Harley-Davidson Credit Corp. (“Plaintiff”) filed an action against Defendant Antoine Dean Kidd aka Antoine Kidd (“Defendant”) for claim and delivery of personal property, for pre-trial writ of possession, and order directing transfer of personal property and restraining order.

On March 3, 2023, Plaintiff filed Proof of Service indicating that Defendant was served via substituted service on a co-occupant over 18 years old by a registered California process server at 4208 S. Victoria Ave., 1/2, View Park, CA 90008 on February 27, 2023, at 2:58 p.m. (3-3-23 Proof of Service.)

On March 30, 2023, Defendant, in pro per, filed the instant Motion to Quash Service of Summons (“the Motion”).  Plaintiff filed an Opposition on April 25, 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.)

III.       Discussion

For the following reasons, the Court agrees with Plaintiff that substitute service was proper.

Defendant argues that the court lacks jurisdiction over him because he was never served by personal or substitute service, and never received service by first class mail. Defendant states that on March 1, 2023, his godson, Rasby Sinclair, discovered an envelope on his front porch. (Kidd Declaration, lines 7-8.) Defendant contends there is footage on Sinclair’s camera phone of Sinclair discovering the envelope. (Mot. p. 4.) Sinclair did not know the envelope contained court documents, so he did not inform Defendant immediately of the documents. (Ibid.) Further, Defendant has never received a copy of the summons and complaint in this case by first class mail. (Ibid.)

Plaintiff has the initial burden. Plaintiff disputes Defendant’s contentions that the summons and complaint were simply left on Defendant’s porch. After filing the Complaint on November 4, 2022, Plaintiff attempted to serve the Complaint and Summons on Defendant’s person but was unable to do so after multiple attempts. (Opp. p. 2.) Then, on February 27, 2023, Plaintiff served Defendant through substituted service “with a John Doe who later identified himself as Randy.” (Opp. p. 2.) “Randy” appeared to be 35 years old. (Opp. p. 2.) On February 28, 2023, Plaintiff mailed the service documents by first class mail to the same address where substituted service was carried out. (Opp. p. 3.)

            “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, John J. Gonzales, that indicates the time, date, and address of service, and provides a physical description of the person served.

            The Court finds that Defendant has not produced sufficient evidence to overcome this presumption. Defendant states in the Motion that his godson found the Summons and Complaint on his porch on or about April 28, 2023 or March 1, 2023. However, there is no evidence of this, such as a declaration from Defendant’s godson. Additionally, while Defendant states in the Motion that there is video evidence of his godson finding the Summons and Complaint on his porch, Defendant does not include this statement in his Declaration. Nor does he attach the video evidence to the Motion. Defendant’s unsupported assertions do not overcome the presumption established by the registered process server’s signed Proof of Service.

            Therefore, the Court finds that Defendant was properly served.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

            Thus, Defendant’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 Antoinne Kidd on March 30, 2023, 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.