Judge: Lisa R. Jaskol, Case: 23STCV11082, Date: 2024-11-07 Tentative Ruling
Case Number: 23STCV11082 Hearing Date: November 7, 2024 Dept: 28
Having considered the moving papers and notice of non-opposition, the Court rules as follows.
BACKGROUND
On May 17, 2023, Plaintiff Phoebe Nalubega (“Plaintiff”) filed this action against Defendants Qi Song (“Defendant”) and Does 1-25 for motor vehicle tort and general negligence.
On September 26, 2024, Defendant, specially appearing, filed a motion to quash service of the summons. The motion was set for hearing on November 7, 2024. On November 5, 2024, Defendant filed a notice of non-opposition.
Trial is currently scheduled for September 24, 2024.
PARTY’S REQUEST
Defendant asks the Court to quash service of the summons.
LEGAL STANDARD
Code of Civil Procedure section 416.10 provides:
“A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:
“(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable).
“(b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.
“(c) If the corporation is a bank, to a cashier or assistant cashier or to a person specified in subdivision (a) or (b).
“(d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.”
(Code Civ. Proc., § 416.10.)
Code of Civil Procedure section 418.10 provides in part:
“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 Code of Civil Procedure 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)].)
“ ‘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
On August 29, 2024, Plaintiff filed a proof of service asserting that Plaintiff served the summons, complaint, and statement of damages on Defendant on August 24, 2024 using substituted service. The proof of service states that the process server left the documents with “John Doe,” purportedly Defendant’s co-occupant, at 115 E Broadway, Apt G101, San Gabriel, CA 91776-1893, Defendant’s “home.”
Defendant argues that Plaintiff served the summons and other documents on the wrong party at the wrong address. According to Defendant, Defendant has never lived at that address and has no connection with it. As a result, Defendant contends, the service was invalid. Defendant has provided a declaration to support these assertions.
Plaintiff has not filed an opposition to Defendant’s motion.
CONCLUSION
The Court GRANTS Specially Appearing Defendant Qi Song’s motion to quash Plaintiff Phoebe Nalubega’s service of the summons. The Court quashes service of the summons.
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.