Judge: Lisa R. Jaskol, Case: 21STCV38370, Date: 2024-01-12 Tentative Ruling

Case Number: 21STCV38370    Hearing Date: January 12, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On October 18, 2021, Plaintiff Karine Khachatryan (“Plaintiff”), making a special appearance, filed this action against Defendants Patricia Rosenfeld (“Defendant”) and Does 1-100 for motor vehicle tort and general negligence. 

On May 12, 2023, Plaintiff filed a proof of service showing substituted service of the summons, complaint, and other documents on Defendant on May 9, 2023. 

On September 20, 2023, Defendant filed a motion to quash service of the summons and complaint to be heard on January 12, 2024.  Plaintiff has not filed an opposition. 

No trial date is currently scheduled. 

PARTY’S REQUEST 

Defendant requests that the Court quash service of summons and complaint. 

LEGAL STANDARD 

“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 defendant may file a motion to quash service of summons on the ground that the court lacks jurisdiction over the defendant.  (Code Civ. Proc., § 418.10, subd. (a).) 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.) 

DISCUSSION 

“ ‘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 Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793 (Floveyor), quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440 (Dill).) 

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, supra, 59 Cal.App.4th at p. 795, citing Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) 

On May 12, 2023, Plaintiff filed a proof of service that complies with the applicable statutory requirements.  (See Code Civ. Proc., § 417.10, subds. (a), (f).)  The proof of service shows substituted service on Defendant of the summons, complaint, and other documents by delivery of the documents on May 9, 2023 to Andrew Rosenfeld at 10525 Strathmore Drive, Los Angeles, CA 90024, described as Defendant’s home.  The proof of service states that Andrew Rosenfeld is a co-occupant of the home.  The registered process server signed a “Declaration of Diligence” and mailed copies of the documents to Defendant’s address.  Therefore, the proof of service creates a rebuttable presumption that the service was proper.  (See Floveyor, supra, 59 Cal.App.4th at p. 795.) 

  Defendant challenges the validity of the proof of service by arguing that Defendant served the wrong address.  To support this argument, Defendant has submitted a declaration from Andrew Rosenfeld stating that Defendant and Andrew Rosenfeld are divorced, Defendant has not lived at 10525 Strathmore Drive since 2019, and Defendant moved outside of the United States in 2022.  Andrew Rosenfeld states: “My residence, 10525 Strathmore Drive, Los Angeles, CA 90024, is not [Defendant’s] dwelling house, usual place of abode, usual place of business, or usual mailing address.”  Andrew Rosenfeld also asserts that he was in North Carolina and never received documents from a process server on May 9, 2023. 

Defendant has rebutted the presumption of proper service.  Plaintiff has not responded to Defendant’s motion to quash or provided evidence demonstrating the validity of the service.  Therefore, Plaintiff has not carried her burden of proving the facts requisite to an effective service of process.  (See Cal. Practice Guide, supra, ¶ 4:421.5, p. 4-72.)  The Court grants the motion and quashes service of summons and complaint on Defendant. 

CONCLUSION 

The Court GRANTS Defendant Patricia Rosenfeld’s motion to quash service of the summons and complaint.  The Court quashes service of the summons and complaint on Defendant Patricia Rosenfeld. 

The Court sets an OSC re: dismissal for failure to file proof of service of the summons and complaint on 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.