Judge Lynne M. Hobbs, Case Number: 22STCV18863, Date: 2024-02-01 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV18863, Date: 2024-02-01 Tentative Ruling

Case Number: 22STCV18863 Hearing Date: February 1, 2024 Dept: 30

ALEXANDRA DIAL, et al. vs JOSE RAMIRO

TENTATIVE

Specially Appearing Defendant’s motion to quash service of summons and complaint is GRANTED. Specially Appearing Defendant to give notice.

Legal Standard

“A defendant . . . 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(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Discussion

Specially Appearing Defendant moves to quash service of the summons and complaint on grounds that Defendant was not validly served.

Here, Plaintiffs filed a proof of service indicating that service on Defendant was made on October 8, 2023, by substituted service at 7727 Lankershim Blvd., Apt. 162, North Hollywood, CA 91605-6528. CCP section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . 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 . . . 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 . . . .” (Code Civ. Proc., § 415.20(b).)

Specially Appearing Defendant argues the substituted service was improper because the property manager there does not have any personal knowledge or record of an individual named Jose Contreras Jimenez or Jose Ramiro living at the apartment complex, currently or on October 8, 2023.

A person’s dwelling house or usual place of abode is the place the person holds out as his or her principal residence and where he or she is mostly likely to receive actual notice. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1415-17.) Here, Jenny Carter, the property manager at the apartment complex, does not have any personal knowledge or record of an individual named Jose Contreras Jimenez or Jose Ramiro living at the apartment complex, currently or on October 8, 2023. (Carter Decl., ¶¶ 2-6.) Carter reviewed the computer database that complex keeps of its lessees and determined that no person named Jose Ramiro nor Jose Contreras Jimenez are the tenants or leaseholders of Apartment 162, 7727 Lankershim Boulevard, North Hollywood, California 91605. (Id. ¶¶ 2-5.) Carter does not have any personal knowledge or documents showing that a person named either Jose Ramiro or Jose Contreras Jimenez has ever lived at the Lankershim Boulevard address. (Id. ¶ 5.) Carter does not have personal knowledge or documents showing that Apartment 162, 7727 Lankershim Boulevard, North Hollywood, California 91605 was either Jose Ramiro or Defendant Jimenez’s dwelling house, usual place of abode, usual place of business, or usual mailing address on October 8, 2023. (Id. ¶ 6.)

As Defendant has filed this motion and submitted evidence showing that the address where Defendant was purportedly served was not the dwelling, usual place of abode, usual place of business, or usual mailing address of Defendant, Plaintiff has the burden of proving otherwise.

Plaintiff has failed to demonstrate otherwise. Plaintiff only argues that no evidence was submitted that Defendant was not served. Plaintiff also argues that Defendant’s counsel’s filing of this motion constitutes a general appearance.

However, Defendant has submitted the declaration of the property manager at the complex Defendant was purportedly served, which the Court finds sufficient.

As to the argument regarding making a general appearance, CCP section 418.10(d) expressly states that no motion under this section shall be deemed a general appearance by the defendant. (Code Civ. Proc., § 418.10(d).) Plaintiff’s arguments are without merit.

Accordingly, the motion to quash service of summons and complaint is GRANTED.