Judge Mark E. Windham, Case 19STCV31718 2023-03-29 Tentative Ruling

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TENTATIVE RULING:

Specially Appearing Defendants Jimmy A. Gomez and Leonard Mata’s Motion to Quash Service of the Summons and Complaint is GRANTED.

ORDER TO SHOW CAUSE REGARDING DEFAULT / DEFAULT JUDGMENT SET FOR APRIL 24, 2023 AT 9:30 AM IS ADVANCED TO THIS DATE AND VACATED. ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE / DISMISSAL IS SET FOR APRIL 24, 2023 AT 9:30 AM.

On September 6, 2019, Plaintiff Chicuace Chicuace (“Plaintiff”) filed the Complaint in this action for slander against Defendants Jimmy A. Gomez and Leonard Mata (“Defendants”).” Initially, the case was incorrectly classified as a class action; upon correction the case was reclassified to the limited jurisdiction court on September 17, 2019. On July 8, 2020, the Court granted Defendants’ first Motion to Quash Service of the Summons. (Mintue Order 07/08/20.) Plainitff then filed proofs of personal service of the Summons and Complaint on November 15, 2021.

Defendants, specially appearing, filed the instant Motion to Quash Service of the Summons and Complaint on March 2, 2023. No opposition has been filed to date.

Defendants request that the Court take judicial notice of (1) The proofs of service of the summons and complaint filed in this case on November 15, 2021; and (2) Defendants’ Motion to Quash with the supporting declarations of defendants previously filed in this case.

The request is granted solely as to the filing of those documents, and denied as to any hearsay matter contained therein. (Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 358 [“Judicial notice can be taken only of the contents of orders, findings of fact, conclusions of law, and judgments.”].)

“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: 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), emphasis added.)

Where service is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service. “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 existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) Here, the challenged proof of services are not attested to by a registered process server, and are not entitled to a presumption of truth. (Proofs of Service, filed 11/15/21.)

The burden of demonstrating proper service of the Summons and Complaint, therefore, falls to Plaintiff on this Motion. As Plaintiff has not filed any opposition to the Motion to Quash, that burden of proof has not been met.

Therefore, Specially Appearing Defendants Jimmy A. Gomez and Leonard Mata’s Motion to Quash Service of the Summons and Complaint is GRANTED.