Judge Kerry Bensinger, Case Number: 24STCV18423, Date: 2025-02-20 Tentative Ruling

This is a legal malpractice action. On December 4, 2024, plaintiffs Billy Ward, Jr. and Caron Phelps-Goydos (“Plaintiffs”) filed a Judicial Council Form Complaint against defendant Tatiana Small (erroneously sued and served as Tatiana Small dba Tatiana Small Attorney at Law) (hereafter, “Defendant”) for general negligence and intentional tort. Plaintiffs are self-represented.

On December 17, 2024, Plaintiffs filed a Proof of Service of Summons. The filing indicates that Patrina Holloway, who is not a registered California process server, personally served the summons and complaint on December 13, 2024.

On January 13, 2025, Defendant filed this motion to quash service of the summons and complaint.

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code Civ. Proc., § 415.10.) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leave a copy of the summons and complaint at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address ... in the presence of ... a person apparently in charge ... and by thereafter mailing a copy of the summons and complaint by first-class mail ... to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (b).)

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.)

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 argues the court lacks personal jurisdiction over her because she was not personally served with summons and complaint. In support, Defendant states she was taking a shower at the time she was purportedly served with the summons and complaint by personal service and that her mother answered the door when Plaintiff’s process server (Patrina Holloway) attempted service. (Small Decl., ¶ 2.) Defendant further states that her home has a video doorbell system installed. After reviewing the recording, Defendant states the person outside the door tosses a non-descript envelope onto the doorstep and then leaves the premises. (Small Decl., ¶ 3.)

The court finds the motion is meritorious.[2] “The method described as ‘personal service’ means service that is accomplished ‘by personal delivery of a copy of the summons and of the complaint to the person to be served.’ (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been ‘personally served.’” (Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) Here, Defendant offers evidence to establish she was not handed the summons and complaint. Plaintiff did not perfect personal service of process.

In opposition, Plaintiffs advance several points which are difficult to understand. Tellingly, however, Plaintiffs offer the declarations of its process server, Patrina Holloway, and Plaintiff Caron Phelps-Goydos, which confirm Defendant’s version of events. Holloway states that after Defendant’s mother closed the front door, “I then placed the documents that were in the brown color envelope on the front doorstep and took a picture of the [sic] at 1:08 p.m.” (Holloway Decl., pp. 2-3.) Plaintiff states that “Partina [sic] then placed the documents that were in the brown color envelope on the front doorstep and we took a picture.” (Phelps-Goydos Decl., p. 2.)

Based on Plaintiffs’ own evidence, Plaintiffs cannot credibly contend Defendant was served with process by personal service. Without valid service of summons, the court does not acquire jurisdiction over a defendant. (Code Civ. Proc., § 418.10, subd. (a)(1); see Kremerman v. White (2021) 71 Cal.App.5th 358, 371.) “A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons. [Kappel v. Bartlett (1988) 200 CA3d 1457, 1466, 246 CR 815, 821; Ruttenberg v. Ruttenberg (1997) 53 CA4th 801, 808, 62 CR2d 78, 82]” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2023) ¶ 4:414.) So too here. Plaintiffs have not effectuated proper service of the Summons and Complaint. The court does not have jurisdiction over Defendant. Plaintiff does not submit any evidence or argument to the contrary.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Plaintiffs’ opposition was not timely filed. The court exercises its discretion to consider the filing. (Cal. R. Ct., rule 3.1300(d).)

[2] Defendant’s first argument fails. Plaintiff’s process server visited Defendant’s home on three occasions, at different times of the day, prior to allegedly serving Defendant by substitute service. (See Proof of Service of Summons.) The court finds Plaintiff made diligent efforts at personal service. (See, e.g., Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392 [“ ‘Ordinarily, ... two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made’ ”].) However, for the reasons stated herein, the court finds it does not have personal jurisdiction over Defendant.