Judge: Mark E. Windham, Case: 20STLC00307, Date: 2022-10-10 Tentative Ruling

Case Number: 20STLC00307    Hearing Date: October 10, 2022    Dept: 26

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendant Irene Zendano’s Motion to Quash Service of the Summons and Complaint is DENIED.

DEFENDANT IRENE ZENDANO IS TO FILE AND SERVE A RESPONSIVE PLEADING TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

SERVICE OF MOTION: 

[X] Proof of Service Timely Filed (CRC 3.1300)      OK

[X] Correct Address (CCP 1013, 1013a)                   OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b))           OK

SUMMARY OF COMPLAINT: Action for wrongful use of civil proceedings.

REQUEST FOR RELIEF: Quash service of Summons and Complaint on the grounds that Defendant Irene Zendano was not properly served. Service was twice previously quashed by the Court and continues to be inadequate. Plaintiff’s response to the OSC includes an email from the process service company closing the case after learning that the address where it made four attempts to serve Defendant Zendano was actually not her address. This shows that the process server only made one attempt to serve Defendant Zendano at the correct address before posting it. This does not satisfy the requirement for reasonable diligence under either California or New York law.

OPPOSITION: Defendant Zendano did not submit a declaration from other members of her household attesting that they did not remove the papers from the front door. The logical conclusion is that the papers were posted as stated in the proof of service. Also, the Motion is untimely filed more than five months after service was effectuated.

REPLY: Reiterates moving papers. 

ANALYSIS:

On January 10, 2020, Plaintiff Basta, Inc. (“Plaintiff”) filed this action for “wrongful use of civil proceedings” against Defendant Irene Zendano (“Defendant”). Plaintiff filed proof of substitute service of the Summons and Complaint on January 24, 2020. On March 3, 2020, Defendant filed a Motion to Quash Service of Summons and Complaint. On November 3, 2020, the Court granted the Motion to Quash. (Minute Order, 11/03/20/.)

Plaintiff filed a second proof of service of the Summons and Complaint. (08/13/21, Proof of Personal Service.) Following Defendant’s failure to file a responsive pleading, Plaintiff obtained entry of default on August 13, 2021. On Febraury 3, 2022, the Court granted Defendant’s motion to vacate the entry of default and set an Order to Show Cause Re Proof of Service of Summons and Complaint for April 6, 2022. (Minute Order, 02/03/22.) The OSC was continued from April 6, 2022 to April 20, 2022 and again to August 1, 2022. Plainitff filed responses to the OSCs on April 5, 2022, May 31, 2022 and July 27, 2022. On August 1, 2022, the OSC Re Failure to File Proof of Service was discharged. (Minute Order, 08/01/22.)

Defendant, through a special appearance, filed the instant Motion to Quash Service of the Summons and Complaint on August 18, 2022. Plaintiff filed an opposition and supporting objection on September 27, 2022. Plaintiff’s objection that the Motion to Quash was not served by electronic mail as required by Cal. Rules of Court Rule 2.251(c)(3) is accurate, but not a sufficient basis for the Court to decline considering the Motion. Plaintiff does not contend it did not have timely notice of the Motion or was otherwise prejudiced. Defendant filed a reply on October 3, 2022.

Discussion

“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 service is not attested to by a registered process server, and therefore, is not entitled to a presumption of truth. (Proof of Service, filed 07/27/22, ¶7.)

Timeliness of Motion

Plaintiff also objects that the Motion was not timely filed within the time to respond to the Complaint. A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20, subd. (a)(3).) The papers were served pursuant to Code of Civil Procedure section 413.10 and New York Civil Practice Law and Rules section 308(4). New York Civil Practice Law and Rules section 308(4) states in relevant part: “proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later;¿service shall be complete ten days after such filing . . . .” (N.Y. C.P.L.R., § 308(4).) Here, the proof of service states that the Summons and Complaint were posted to the service address on March 23, 2022 and thereafter mailed on March 25, 2022. (Proof of Service, filed 07/29/22, p. 3.)

Proof of such service, in the form of an “Affidavit of Service” was filed with the Court on April 5, 2022, as an attachment to Plaintiff’s Response to Order to Show Cause. (Response to OSC, filed 04/05/22, Ramm Decl., Exh. 1.) Therefore, service was effective ten days later, on April 15, 2022 and the time to respond expired on May 15, 2022.

While the Motion was not filed by May 15, 2022, the Court finds good cause for its timing. The Response to the Order to Show Cause does not show that it was served on Defendant such that she was aware of the Affidavit of Service. The proof of service required under California law was only filed by Plaintiff on July 29, 2022.

Service of Summons and Complaint

Defendant moves to quash service of the Summons and Complaint on the grounds that she was not served in accordance with California or New York law. Plaintiff’s opposition relies on the proof of service filed on July 27, 2022, and the declarations of Anthony Crowley and Jenna Towner, filed on June 6, 2022.

The proof of service contends that service was accomplised pursuant to the following New York statute, which provides that service can be accomlished as follows:

[W]here service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence . . . .”

(N.Y. C.P.L.R., § 308(4).) The supporting Crowley and Towner declarations demonstrate that due dilgence was exercised by five earlier attempts at service at the service address, and thereafter posting and mailing the papers to the service address. (Crowley Decl., filed 06/06/22, ¶¶2-5; Towner Decl., ¶¶2-3.) The proof of service and supporting Crowley and Towner declarations are sufficient to carry Plaintiff’s initial burden on the Motion to Quash.

Defendant argues that Plaintiff has not shown due diligence because the earlier service attempts were at the wrong address, as admitted by Plaintiff’s process servicing copmany. Defendant cites to an email from the process server, which is attached to the April 5, 2022 Response to the Order to Show Cause. (Motion, p. 3:6-10.) The email, however, does not show that the earlier attempts at service were only to the wrong address. The email, dated March 19, 2022, identifies the address at 137 Fairlane Ave., Tonawanda, New York, as an invalid address to serve Defendant. (Response to OSC, filed 04/05/22, Exh. 3.) Plaintiff’s counsel’s supporting declaration goes on to explain that the process server was hired with respect to two different addresses for Defendant. (Response to OSC, Ramm Decl., ¶2.) One address was at 137 Fairlane Ave., the other address was at 3783 Colin Court, Wheatfield, New York. (Ibid.) The 3783 Colin Court address was obtained from the New York Department of Motor Vehicles. (Ibid.) The Affidavit of Service and Crowley declaration both show that the process server made multiple attempts to serve Defendant at the 3783 Colin Court address. (Id. at Exh. 1; Crowley Decl., ¶¶2-5.) Contrary to Defendant’s argument that the only attempt at service at the 3783 Colin Court address took place on March 21, 2022, Plaintiff has demonstrated that five attempts were made to that address prior to posting the papers, including an attempt on February 14, 2022 during which the process server spoke to a neighbor located at “3779 Collin” to confirm Defendant’s address. (Id. at Exh. 1; Crowley Decl., ¶¶2-5.) Therefore, Defendant has not shown a lack of due diligence in serving the Summons and Complaint.

Defendant also provides her own declaration in which she states that she never observed papers posted to her door, nor removed such papers. (Motion, Zendano Decl., ¶¶3-4.) As Plaintiff points out in opposition, this does not address whether such papers might have been observed or removed by another person living at the 3783 Colin Court address. Plaintiff has previously attested that she lives with her husband. (Opp., citing Motion to Quash, filed 08/27/21, Zendano Decl., ¶5.) Nor does Plaintiff provide a declaration with the Reply addressing the possible role of Defendant’s husband, which would be the logical response to the opposition argument. In fact, the Reply offers no additional supporting evidence at all.

Defendant’s other contentions regarding non-receipt of a certified letter with the Summons and Complaint have no bearing on the manner of service required by New York Civil Practice Law and Rules section 308(4). After the papers are posted, the statute only requires that they be mailed to Defendant’s last known residence. (N.Y. C.P.L.R., § 308(4).) Certified mail is not required. Nor is Defendant’s conclusory statement that she did not receive an envelope marked personal and confidential containing the Summons and Complaint sufficient to overcome the declaration of Jenna Towner, which states that the papers were mailed on March 25, 2022. (Towner Decl., filed 06/06/22, ¶3.)

To the extent that the Motion goes on to argue that there are discrepancies in other filings by Defendant, these are insufficient to question the credibility of Plaintiff’s counsel and the process servers with respect to the proof of service filed on July 27, 2022. For example, the Motion makes much of earlier statement by Plaintiff, such as claims of service by certified mail, but those statements are irrelevant to the proof of service at issue. (See id. at pp. 5:20-6:25.) Also, Defendant’s Motion itself contains inaccuracies, such as the contention that Towner’s declaration is contradicted by Plaintiff’s counsel’s declaration filed on April 5, 2022. (See Motion, p. 7:17-20.) However, Plaintiff’s counsel does not declare that he mailed the papers, nor is the declaration post-dated May 31, 2022. (Response to OSC, filed 04/05/22, Ramm Decl., ¶¶1-5.) Plaintiff is not required to defend every statement made over the last two years, and the Court will not analyze the same on this Motion in order to minutely weigh the scales of each party’s credibility. The issues are limited to Defendant’s compliance with the relevant New York service statute and whether there is sufficient proof to support said compliance. As discussed above, the Court finds Defendant has carried its burden of proof to demonstrate service of the Summons and Complaint as required by New York and California law.

Conclusion

Therefore, Specially Appearing Defendant Irene Zendano’s Motion to Quash Service of the Summons and Complaint is DENIED.

DEFENDANT IRENE ZENDANO IS TO FILE AND SERVE A RESPONSIVE PLEADING TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Plaintiff to give notice.