Judge: Lisa R. Jaskol, Case: 20STCV10248, Date: 2023-12-11 Tentative Ruling
Case Number: 20STCV10248 Hearing Date: December 11, 2023 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On March 13, 2020, Plaintiff Ryan Austin (“Plaintiff”) filed this action against Defendants Daniel Moreno (“Moreno”), Avis Budget Group, Inc., PV Holding Corp. (“PV Holding”), and Does 1-20 for motor vehicle tort and general negligence.
On March 23, 2021, Defendants Avis Rent A Car Systems, LLC (erroneously named and served as Avis Budget Group, Inc.) (“Avis”) and PV Holding filed an answer.
On May 17, 2023, the Court dismissed Avis and PV with prejudice at Plaintiff’s request.
On June 9, 2023, Moreno filed a motion to quash service of summons by substituted service or, in the alternative, to dismiss for failure to serve within three years under Code of Civil Procedure section 583.210, to be heard on October 31, 2023. The Court continued the hearing to December 11, 2023. On December 7, 2023, Plaintiff filed an opposition.
No trial date is currently scheduled.
PARTIES’ REQUESTS
Moreno requests that the Court quash service of summons and dismiss the complaint against him.
Plaintiff asks the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 418.10, subdivision (a)(1), provides:
“(a) 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 serve and file a notice of motion for one or more of the following purposes:
“(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”
(Code Civ. Proc., § 418.10. subd. (a)(1).)
A motion made under section 418.10 does not constitute an appearance unless a court denies the motion. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) (Cal. Practice Guide) ¶ 3:376, p. 3-116 [“If the motion is denied, defendant is deemed to have made a general appearance – waiving any jurisdictional objection – upon entry of the order denying the motion” (emphasis omitted)].)
“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving 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 other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)
“ ‘Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfied the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.’ ” (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 443, quoting Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 741.)
“ ‘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 facts requisite to an effective service.’ “ (Cal. Practice Guide, supra, ¶ 4:421.5, p. 4-72, quoting Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)
Code of Civil Procedure section 583.210 provides:
“(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.
“(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.”
(Code Civ. Proc., § 583.210.)
Code of Civil Procedure section 583.240 provides:
“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:
“(a) The defendant was not amenable to the process of the court.
“(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.
“(c) The validity of service was the subject of litigation by the parties.
“(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.”
Code of Civil Procedure section 583.250 provides:
“(a) If service is not made in an action within the time prescribed in this article:
“(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.
“(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.
“(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
(Code Civ. Proc., § 583.250.)
DISCUSSION
Plaintiff had until March 13, 2023 – three years from the March 13, 2020 filing of the complaint – to serve the summons on Moreno. Moreno argues that Plaintiff filed a proof of service of summons by substituted service on May 16, 2023 showing that Plaintiff did not completed substituted service on Moreno until May 12, 2023, after the deadline.
On April 11, 2023, Plaintiff filed a proof of service purporting to show substituted service of the summons, complaint, and other documents on Moreno on June 28, 2021. However, the proof of service shows that the process server made only one attempt to personally serve Moreno, on June 28, 2021, before leaving the documents with a “co-occupant” the same day. “Two or three attempts to personally serve defendant at a ‘proper place’ [citation] ordinarily qualifies as ‘reasonable diligence’ ” justifying substituted service. (Cal. Practice Guide, supra, ¶ 4:198, p. 4-32.) Therefore, the June 21, 2021 attempted service after only one attempt at personal service was ineffective.
The Court informed Plaintiff that the June 21, 2021 proof of service was defective when Plaintiff tried to take Moreno’s default on April 11, 2023. According to Plaintiff, “[o]nce informed of the defect in the service of Mr. Moreno, we immediately served Mr. Moreno by substituted service on May 1, 2023.” (Opposition p. 3.)
Plaintiff argues that the Court should deny Moreno’s motion under Code of Civil Procedure section 583.240 because “the Complaint for this matter was filed on March 13, 2020; just before the court’s moratorium regarding filing matters with the court, which acted as a stay on court proceedings.” According to Plaintiff, “[t]he court’s standing order regarding civil matter remained in effect for over 6 months,” extending the time to serve Moreno by “at least 6 months.”
Plaintiff does not cite any specific stay order and the Court is not aware of any “moratorium” or order staying proceedings in this case. Although the Court continued some hearings and took other steps to protect the health of the public and Court staff at the outset of the COVID-19 pandemic, the Court did not prevent parties from filing papers or prosecuting their cases. Plaintiff has not shown that, in computing the time within which service must be made, the Court should exclude time for any reason stated in Code of Civil Procedure section 583.240.
The Court grants the motion, quashes service, and dismisses the action against Moreno.
CONCLUSION
The Court GRANTS Defendant Daniel Moreno’s motion to quash service of summons. The Court quashes service of the summons and dismisses the action against Defendant Daniel Moreno with prejudice under Code of Civil Procedure section 583.250, subdivision (a)(2).
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.