Judge: Lisa R. Jaskol, Case: 23STCV13448, Date: 2024-01-11 Tentative Ruling

Case Number: 23STCV13448    Hearing Date: January 11, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On June 12, 2023, Plaintiff Marcos Perez (“Plaintiff”) filed this action against Defendants Luz Maria Pacheco (“Defendant”) and Does 1-20 for motor vehicle tort and “Negligence per se for violation of California Vehicle Code Section 22350, unsafe speed for conditions.” 

On November 22, 2023, Defendant filed a motion to quash service of the summons and complaint to be heard on January 11, 2024. On January 2, 2024, Plaintiff filed an opposition. On January 3, 2024, Defendant filed a reply. 

Trial is currently scheduled for December 9, 2024. 

PARTIES’ REQUESTS 

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

Plaintiff requests that the Court deny the motion. 

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.) 

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 August 9, 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 to Luz Rubio (“Rubio”), a member of Defendant’s household, at 7011 S. Main St., Apt 5 in Los Angeles on August 9, 2023.  It includes an “affidavit of reasonable diligence” and it states that the process server 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 Rubio is not a member of Defendant’s household but instead lives in apartment 4, next door to Defendant.  To support this argument, Defendant has submitted her own declaration stating that Rubio is a neighbor and not a household member.  As a result, Defendant argues, delivering the documents to Rubio did not satisfy the requirements for substituted service. 

In his opposition, Plaintiff argues that the process server attempted to serve Defendant personally but Defendant asked the process server instead to serve Rubio, Defendant’s cousin and neighbor, because Defendant struggled with English.  Plaintiff asserts that this information is contained in a declaration by the process server attached to Plaintiff’s opposition, but no declaration is attached.  Plaintiff evidently attached a declaration to the copy of the motion served on Defendant, but Defendant states in her reply that the declaration does not contain the statement on which Plaintiff relies.   

The process server's declaration included in the proof of service that Plaintiff filed on August 9, 2023, does not state that Defendant asked the process server to serve Rubio.  Instead, it contains the process server’s statement that he tried to personally serve Defendant at her home on August 8, 2023 but there was no response.  It does not mention any conversation between Defendant and the process server. 

In a declaration supporting her reply, Defendant states that (1) she never told the process server to serve Rubio, (2) Rubio is not her cousin or relative, and (3) Defendant speaks English fluently. 

Defendant has rebutted the presumption of proper service.  Plaintiff has not carried his 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 Luz Maria Pacheco’s motion to quash service of the summons and complaint.  The Court quashes service of the summons and complaint on Defendant Luz Maria Pacheco. 

The Court sets an OSC re: dismissal for failure to file proof of service of the summons and complaint on March 11, 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.