Judge Lee S. Arian, Case Number: 23STCV10388, Date: 2024-10-15 Tentative Ruling

Judge: Lee S. Arian, Case: 23STCV10388, Date: 2024-10-15 Tentative Ruling

Case Number: 23STCV10388 Hearing Date: October 15, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27¿

MOTION TO QUASH SUBPOENA AND MOTION TO SET ASIDE DEFAULT

Hearing Date: 10/15/24¿¿

CASE NO./NAME: 23STCV10388 ELISEO ESCOTO, vs MELVIN WILLIAM MARTINEZ QUIJANO et al.

Moving Party: Defendant Melvin Quijano

Responding Party: Unopposed

Notice: Sufficient¿¿

Ruling: MOTION TO QUASH SUBPOENA AND MOTION TO SET ASIDE DEFAULT ARE GRANTED.¿

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.)

“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 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.) The moving party may then introduce evidence to rebut this presumption.

Discussion

On May 9, 2023, Plaintiff filed the present case against Defendant Melvin William Martinez Quijano. On June 9, 2024, Defendant was allegedly served by substitute service. On August 1, 2024, a default was entered against Defendant. Defendant now moves to quash service on the basis that service was improper.

The Proof of Service indicates that on June 9, 2024, at 1:58 p.m., Plaintiff served Defendant through substitute service by delivering the summons and complaint to “Alfredo Perez,” a purported co-occupant at 10435 Omelveny Ave, Pacoima, CA 91331-3712. While Plaintiff’s proof of service technically complies with statutory requirements and creates a rebuttable presumption of proper service (Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390), Defendant has introduced sufficient evidence to rebut this presumption.

Defendant Quijano declares that although he resides at 10435 Omelveny Ave, Alfredo Perez does not live at that address, has never lived there, and is not a co-occupant. Furthermore, Perez has never been authorized to accept service on Defendant’s behalf. This challenges the validity of the substitute service, as CCP § 415.20(b) requires that the documents be served on a competent member of the household.

Plaintiff did not file an opposition or provide any countervailing evidence to support the validity of service. The Court finds that Defendant has successfully demonstrated that Alfredo Perez was not a competent member of the household, which makes the substituted service flawed. As a result, Defendant's motion to quash service is GRANTED.

Additionally, because Defendant did not receive proper service of the summons and complaint, and the parties were engaged in communications regarding a potential pre-litigation settlement from April to August 2024, Defendant’s counsel was taken by surprise when Plaintiff took Defendant’s default. Defendant acted promptly after discovering the default by moving to quash service and set aside the default. Plaintiff did not file an opposition contesting Defendant’s contentions. Thus, Defendant’s motion to set aside default is also GRANTED.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.