Judge: Latrice A. G. Byrdsong, Case: 23STLC03465, Date: 2024-01-18 Tentative Ruling

Case Number: 23STLC03465    Hearing Date: January 18, 2024    Dept: 25

Hearing Date:                         Thursday, January 18, 2024

Case Name:                             MATHEW LENEHAN, an Individual; and MARABELLA LENEHAN, and individual. v. DUSTIN RUPPERT, an individual; KENNY RUPPERT, an individual; and DOES 1THROUGH 30, inclusive.

Case No.:                                23STLC03465

Motion:                                   Motion to Quash Service of Summons

Moving Party:                         Special Appearing Defendants Kenny and Dustin Ruppert.

Responding Party:                   Plaintiff Matthew Lenehan

Notice:                                    OK

Tentative  Ruling:                   Special Appearing Defendants Kenny Ruppert and Dustin Ruppert’s Motions to Quash Service of Summons are GRANTED.

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 as of January 10, 2024                           [   ] Late          [   ] None 

REPLY:                     Filed as of January 11, 2024                           [   ] Late          [   ] None 

BACKGROUND

On May 30, 2023, Plaintiffs Matthew Lenehan (“Matthew”) and Marabella Lenehan (“Marabella”) (collectively “Plaintiffs”) filed several causes of action against Defendants Dustin Ruppert (“Dustin”) and Kenny Ruppert (“Kenny”) (collectively “Defendants”) for 1) Failure to Provide a Habitable Dwelling; 2) Breach of Covenant and Right to Quiet Enjoyment; 3) Private Nuisance; and 4) Negligence.  

On October 30, 2023, Defendants, specially appeared to file the instant Motion to Quash Service of Summons. Plaintiffs filed opposition. Specially Appearing Defendants reply.

MOVING PARTY POSITION

            Defendants pray for an order from the Court quashing Plaintiff’s service of summons. Defendants argue that the service was defective as Plaintiffs did not attach a copy of the notice and acknowledgement when it rendered service by mail. Thus, because the summons lacked inclusion of a copy of the notice and acknowledgement as provided under CCP § 415.30 service should be considered ineffective.

OPPOSITION

            In opposition, Plaintiff argues that service was properly rendered on Defendants. Plaintiff’s assert that his service processor attempted service five times on Defendants’ homes several times but received no answer, subsequently service was then made by priority mail. Moreover, Plaintiffs argue that Defendants’ prior counsel requested a copy of the Summons and Complaint which Plaintiff claims were emailed to him that same day. Later, Defendant’s new counsel requested additional time to file a response yet filed the motion to quash.

REPLY

            Defendants reply to the opposition, arguing that Plaintiffs’ opposition is untimely pursuant to CCP § 1005(b). Defendants further emphasize that California Law requires strict compliance with its service of process requirements for the Court to obtain jurisdiction over the Defendants. Moreover, Plaintiff did not properly follow the service requirements specified under CCP § 415.30 and 415.20(c) as Defendants neither received nor signed a written acknowledgment of receipt of summons.

ANALYSIS

I.          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.)

II.        Discussion

            Defendant Kenny provides the court with a declaration of his counsel which states that on July 14, 2023, Plaintiffs attempted to serve Kenny a copy of the summons and Complaint via Fed-Ex overnight delivery. (Rey S. Yang Decl. ¶ 3.; Exh. A) When counsel became aware of Plaintiffs’ improper service, counsel contacted Plaintiffs’ Counsel by email and by phone to inform him that proper service had not been effectuated (Id. ¶ 5-6.) On October 19, 2023, Defendant’s counsel sent a meet and confer letter to Plaintiffs’ counsel regarding the improper service and advised Plaintiffs’ counsel that Defendants would be filing the instant motions to quash unless they had heard from Plaintiffs’ counsel. (Id. ¶ 7; Exh. C.) Seeing no response, Defendants’ counsel filed the instant motions. (Id. ¶ 8.)

            The Court notes that similar facts are alleged as to Defendant Dustin. Counsel further declares that Plaintiffs served Dustin by overnight mail without copies of the notice and acknowledgment included in the service of summons (Rey Yang ¶ 3; Exh. B.)

            In opposition, Plaintiffs state that they requested “One Legal” to make a personal service on Defendants. (Khalil Ahmd Decl. ¶ 2.) One Legal informed Plaintiff’s counsel that its process server made several attempts to serve Defendants, however, Defendants did not open the door for him to serve summons and complaint. (Id.; Exh. B.) Thereafter, Plaintiffs’ counsel directed his legal assistant to service the summons and complaint by priority mail. (Id. ¶ 3; Alice Fong Decl. ¶ 2.)

            Code of Civil Procedure § 415.10 provides that summons may be served by personal delivery of a copy of summons and complaint to the person to be served. (Code Civ. Proc. Proc. § 415.10.) CCP § 415.30 additionally provides that summons may be served by mail provided that a copy of the summons and the complaint be mailed by first class mail or airmail, postage prepaid to the person to be served “together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code Civ. Proc. Proc. § 415.30.)

            The Court notes that Defendants rely on Ziller Electronics Lab GmbH v. Super. Ct. and Schering Corp. v. Superior Ct. to elaborate Plaintiffs’ burden under CCP § 412.20 and further that strict compliance with service statues to form the basis of jurisdiction over the Defendants. However, the Court finds better authority in Summers v. McClanahan which held that, “[w]hen 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.)

Here it’s clear from Defendants’ evidence that Plaintiff did not provide Defendants with a copy of the notice and acknowledgment provided for under CCP § 415.30(b). Plaintiffs evidence that service by mail was necessary after multiple failed attempts to render personal service on Defendants however, considering the missing copies of notice and acknowledgement for both Defendants, the Court finds Plaintiff has failed to meet its burden to prove existence of jurisdiction. Thus, since Plaintiffs’ Service of Summons did not contain copies of the notice and acknowledgement as specified under CCP § 415.30, service is considered ineffective.

Accordingly, the Court GRANTS Defendants’ Motions to Quash Service of Summons.     

III.       Conclusion

            Defendants’ Motions to Quash Service of Summons are GRANTED.

Moving party is ordered to give notice.