Judge: Lisa R. Jaskol, Case: 23STCV11852, Date: 2024-03-25 Tentative Ruling

Case Number: 23STCV11852    Hearing Date: March 25, 2024    Dept: 28

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

BACKGROUND 

On May 25, 2023, Plaintiffs Nikko Peach and Sandra Moran filed this action against Defendants Kamryn Jefferson (“Defendant”) and Does 1-10 for motor vehicle tort and general negligence. 

On February 21, 2024, Defendant filed a motion to quash ineffective service of summons and complaint to be heard on March 25, 2024.  Plaintiffs have not filed an opposition.  On March 7, 2024, Plaintiffs filed an amended proof of service and a “Non Service Report.” 

Trial is currently scheduled for November 21, 2024. 

PARTY’S REQUEST 

Defendant asks the Court to quash service of the 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 (Engebretson), 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 December 19, 2023, Plaintiffs filed a proof of substituted service of the summons, complaint, and other documents.  The proof of service states that Azucena Solano served the papers on December 7, 2023 by leaving them at 514 Danbury Park Lane, Houston, TX 77073, with a “co-occupant” “Jane Doe,” who was “at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.”  The proof of service includes a Declaration of Diligence which shows one attempt to effect personal service on December 7, 2023 at 6:30 p.m. 

Defendant has submitted a declaration stating (1) he does not live at 514 Danbury Park Lane, Houston, Texas 77073, (2) on December 7, 2023, when Plaintiffs allegedly served summons and complaint via substituted service, he did not live at 514 Danbury Park Lane, Houston, Texas 77073, (3) he does not know the person who was living at 514 Danbury Park Lane, Houston, Texas at the time of service, and (4) he is not related to the individual who was living at 514 Danbury Park Lane, Houston, Texas at the time of service. 

As noted, Plaintiffs have not filed an opposition to Defendant’s motion.  However, they have filed (1) an amended proof of service and (2) a “Non Service Report.”  Both filings address Plaintiffs’ efforts to serve Defendant at 514 Danbury Park Lane, Houston, Texas.  

The Non Service Report indicates that 514 Danbury Park Lane, Houston, Texas is a home, not a business as the proof of service asserts.  Neither the amended proof of service nor the Non Service Report refute Defendant’s assertion that he did not live at the address at the time of service. 

Even if the address was a business, service was improper because the proof of service identifies “Jane Doe” as a “co-occupant,” not a person authorized to accept service for a business. 

The Court grants Defendant's motion and quashes service of the summons and complaint on Defendant. 

CONCLUSION 

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

The Court sets an OSC re: dismissal for failure to file proof of service of the summons and complaint on May 24, 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.