Judge Kerry Bensinger, Case Number: 22STCV16714, Date: 2024-08-12 Tentative Ruling

Plaintiff Jose Angel Manaiza, Jr. initiated this action on May 20, 2022, and filed the operative First Amended Complaint on April 10, 2024 against Defendant Interinsurance Exchange of the Automobile Club for (1) Breach of Contract– Failure to Fulfill Obligations Under Insurance Policy, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, (3) Failure to Investigate Claim, and (4) Insurance Bad Faith. Plaintiff is self-represented.

On May 10, 2024, Plaintiff filed a Proof of Substituted Service indicating that “Erin Nguyen, Esq (Corporate Counsel) for Interinsurance Exchange of The Automobile Club” was purportedly served with the summons and amended complaint on April 19, 2024 at 3333 Fairview Road, A-451, Costa Mesa, CA, 92626-1698 (the “Costa Mesa address”). The person who served the papers is not a registered California process server.

Before the court are two motions: (1) Defendant’s Motion to Quash Service of Process, filed May 31, 2024, and (2) Plaintiff’s Motion for Order of Entering Default and Default Judgment, filed March 8, 2024.

Because the court finds Defendant’s unopposed motion to quash is meritorious, the court does not reach the merits of Plaintiff’s motion.

A summons may be served on a corporation by delivering a copy of the summons and complaint: (1) to the person designated as agent for service of process (Code of Civ. Proc., § 416.10, subd. (a)); (2) to the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process (Code of Civ. Proc., § 416.10, subd. (b)); or (3) a method authorized by California Corporations Code sections 1701, 1702, 2110, or 2111 (Code of Civ. Proc., § 416.10, subd. (c)).

A summons may be served on an unincorporated association (including a partnership) by delivering a copy of the summons and of the complaint:

(a) If the association is a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to a general partner or the general manager of the partnership;

(b) If the association is not a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to the president or other head of the association, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the association to receive service of process.

A defendant must file a motion to quash service of summons on or before the last day on which the defendant must plead unless the time is extended by stipulation or by a judge’s order for good case.¿ (Code Civ. Proc., § 418.10, subd. (a)(1).)¿ Although the notice of motion must designate a hearing date not more than 30 days after the notice is filed, scheduling a hearing date beyond the 30-day time period does not deprive the court of jurisdiction to consider the merits of the motion.¿ (Olinick v. BMB Entertainment (2006) 139 Cal.App.4th 1286, 1295-96.)¿

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper.¿ (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to ... the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].)¿ However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs.¿ (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42.)¿ Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)¿¿

When a defendant moves to quash service of summons, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”¿ (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)¿

Defendant moves for an order quashing service of the summons and complaint on the grounds that Ms. Nguyen is not Defendant’s agent for service of process. In support, Defendant submits a copy of the California Department of Insurance’s online profile which reflects that Defendant’s registered agent for service of process is Melissa DeKoven, c/o Corporation Service Company at 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833. (See Nguyen Decl., Ex. A.) Accordingly, the court lacks jurisdiction over Defendant.

Upon review, the court finds Plaintiff did not properly serve the summons and amended complaint on Defendant. Plaintiff, having not filed an opposition, does not offer any argument to the contrary.

Defendant’s Motion to Quash Service of Summons is GRANTED. The court sets an OSC re: Service of Summons for September 9, 2024 at 9:00 a.m.

Given the court’s ruling on Defendant’s Motion to Quash, Plaintiff’s Motion for Order of Entering Default and Default Judgment is MOOT.

Kerry Bensinger

Judge of the Superior Court