Judge: Lee S. Arian, Case: 21STCV36255, Date: 2025-05-06 Tentative Ruling

Case Number: 21STCV36255    Hearing Date: May 6, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOTION TO DISMISS

On October 1, 2021, Plaintiff filed this dog bite case. On February 5, 2025, Plaintiff filed a proof of substituted service for Defendant Francisco Loya. Defendant now moves the Court to quash service and dismiss this action on the ground that service was improper and was not completed within the three-year deadline set forth in Code of Civil Procedure section 583.210.

Code of Civil Procedure section 583.210, subdivision (a) provides: “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” Section 583.250 further mandates that “[i]f service is not made in an action within the time prescribed in this article, the action shall not be further prosecuted,” and that dismissal is mandatory, either on the Court’s own motion or the motion of an interested party. These requirements are not subject to extension, excuse, or exception, except as expressly provided by statute. (Code Civ. Proc., § 583.250, subd. (b).)

However, Plaintiff relies on Code of Civil Procedure section 583.240, subdivision (c), which provides that “[i]n computing the time within which service must be made pursuant to this article, there shall be excluded the time during which... [¶] (c) The validity of service was the subject of litigation by the parties.”

Plaintiff points out that Defendant filed a motion to quash on April 21, 2023, and the hearing on that motion was not heard until February 1, 2024. Plaintiff argues that this period should be excluded from the three-year calculation because service was the subject of ongoing litigation.

Defendant argues that section 583.240(c) does not apply because there is no separate litigation relating to service, asserting that the only litigation pertains to the underlying dog bite case. This narrow interpretation of the term “litigation” is untenable, as parties do not file separate actions solely over service disputes. The  litigation concerning the validity of service necessarily occurs within the underlying action.  Accordingly, the period between the filing and hearing of the motion to quash must be excluded when calculating the three-year deadline, and dismissal is not yet warranted.

MOTION TO QUASH

Defendant also moves to quash Plaintiff’s January 31, 2025 substituted served on Defendant.

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’” (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.) A defendant’s knowledge of the action does not dispense with the 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.” (Code 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.) Filing of a proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service. (Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Here, a proof of service was filed on February 5, 2025, reflecting substituted service at 14608 Chatsworth Dr., Mission Hills, CA 91345, on a person described as a competent member of the household at least 18 years of age, with copies also mailed to that address. A declaration of due diligence was also attached. (Although Plaintiff initially filed an incorrect 2023 version of the proof of service with the opposition, the corrected version was filed with the Court on February 5, 2025, and the Court has reviewed its contents to make its ruling.)

The Court finds that the proof of service has met all the statutory requirements for substituted service and therefore creates a rebuttable presumption of proper service.

Defendant Loya has submitted a declaration stating that he and his wife are the sole occupants of the residence and that no Hispanic male in his 60s resides with them or is authorized to accept service on their behalf.

Plaintiff argues that Defendant’s declaration does not specifically deny that the male individual photographed was present or appeared to be in charge. However, the photograph alone does not establish that the individual was apparently in charge. The image merely shows the person standing near a truck and could just as easily depict a friend or visitor. Furthermore, Code of Civil Procedure section 415.20(b) requires that substituted service at a dwelling house be made on a competent member of the household. The phrase “person apparently in charge” refers to service at a usual place of business, office, or usual mailing address, not a residence. Plaintiff has not submitted any evidence showing that the individual served is a competent member of the household or to contest Defendant’s declaration.

Accordingly, Defendant has rebutted the presumption of valid service, and the motion to quash is granted.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.