Judge: Lisa R. Jaskol, Case: 20STCV22973, Date: 2024-01-10 Tentative Ruling
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Case Number: 20STCV22973 Hearing Date: January 10, 2024 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On June 17, 2020, Plaintiff Rigoberto Caratachea (“Plaintiff”) filed this action against Defendants Jesus Manuel Medina Garcia (“Defendant”) and Does 1-25 for negligence.
On June 10, 2021, the Court granted Defendant’s motion to quash service of summons, finding that service was not proper.
On June 22, 2022, the Court granted Defendant’s second motion to quash service of summons, ruling that service must comply with the requirements of the Hague Convention.
On January 11, 2023, Plaintiff’s counsel informed the Court that counsel was waiting for the Ministry of Mexico to serve the defendant.
On May 11, 2023, the Court granted Plaintiff’s request for additional time to file the proof of service of the summons and complaint based on Plaintiff’s counsel’s statement that Plaintiff needed to serve Defendant via the Hague Convention.
On September 26, 2023, specially-appearing Defendant filed a motion to quash service of the summons and complaint to be heard on January 10, 2024. On December 27, 2023, Plaintiff filed an opposition. On January 3, 2024, Defendant filed a reply.
No trial date is currently set.
PARTIES’ REQUESTS
Defendant requests that the Court quash service of the summons and complaint.
Plaintiff requests that the Court 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) ¶ 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)].)
“ ‘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.)
The filing of a proof of service creates a rebuttable presumption that the service was proper “if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 (Floveyor), quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442 (Dill).)
DISCUSSION
On January 19, 2023, Plaintiff filed a proof of service stating that Plaintiff’s process server served the summons, complaint, and statement of damages on Defendant by substitute service on January 17, 2023 at 139 Ocean Street, West Covina, CA 91790. According to the process server’s declaration, the process server left the summons and complaint with a female co-occupant.
The proof of service which Plaintiff filed on January 19, 2023 complies with the applicable statutory requirements. (See Code Civ. Proc., § 417.10, subds. (a), (f).) Therefore, Plaintiff’s filing of the proof of service on January 19, 2023 created a rebuttable presumption that the service was proper. (See Floveyor, supra, 59 Cal.App.4th at p. 795.)
Defendant has submitted a declaration from Karla Rodas (“Rodas”), who states the following: Rodas owns the home at 139 Ocean Street, West Covina, CA 91790 and has resided there since 2015. Defendant has not resided at 139 Ocean Street, West Covina, CA 91790 since 2015, Defendant does not receive mail there, and Rodas does not know Defendant. Rodas is unaware of any connection Defendant may have to 139 Ocean Street, West Covina, CA 91790. Rodas was not given any documents by a process server and did not receive the summons and complaint in the mail.
Defendant also argues that he lives in Mexico and Plaintiff has previously represented to the Court that service will be carried out in compliance with the Hague Convention.
Plaintiff argues the motion is untimely under Code of Civil Procedure section 418.10, Defendant has not rebutted the presumption of proper service, Defendant has actual notice of the lawsuit, and service was proper.
The Court finds good cause to allow Defendant to file the motion to quash on September 26, 2023 based on Defendant’s counsel’s reasonable reliance on Plaintiff’s counsel’s representation that Plaintiff was proceeding with service under the Hague Convention. (See Code Civ. Proc., § 418.10, subd. (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”].)
The Court finds that Defendant has rebutted the presumption of proper service based on the declaration of Karla Rodas.
Defendant is entitled to proper service whether or not he has actual knowledge of the lawsuit. “ ‘In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. . . . When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service. . . .” (Floveyor, supra, 59 Cal.App.4th at p. 793, quoting Dill, supra, 24 Cal.App.4th at pp. 1439-1440.)
Plaintiff argues service was proper because, according to Plaintiff, Defendant no longer resides in Mexico. Yet the only evidence Plaintiff presents to support this assertion is a statement by the current resident of Defendant’s former home that Defendant moved to Norwalk, California. The document containing this statement does not explain the basis for the current resident’s supposed knowledge of Defendant’s current residence. Indeed, the individual stated that since Defendant sold him the house in July 2019, “I haven’t had any news on him since then.” In the absence of any information showing the current resident has personal knowledge of where Defendant lives, the Court finds the statement does not carry Plaintiff’s burden of proving proper service.
Because Plaintiff has not carried his burden of proving facts establishing effective service, the Court grants the motion and quashes service of the summons.
CONCLUSION
The Court GRANTS Defendant Jesus Manuel Medina Garcia’s motion to quash service of summons. The Court quashes service of the summons.
The Court sets an Order to Show Cause Re: Dismissal for Failure to File Proof of Service of Summons and Complaint for March 12, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse.
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.