Judge: Mark E. Windham, Case: 20STLC07705, Date: 2022-09-20 Tentative Ruling

Case Number: 20STLC07705    Hearing Date: September 20, 2022    Dept: 26

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendant Marcia Garcia’s Motion to Quash Service of the Summons and Complaint is GRANTED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS IS SET FOR NOVEMBER 29, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

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 civil rights discrimination.

REQUEST FOR RELIEF: Quash service of Summons and Complaint on the grounds that Defendant Marcia Garcia was not properly served and the proof of service is facially defective.

OPPOSITION: None filed as of September 16, 2022.

REPLY: None filed as of September 16, 2022. 

ANALYSIS:

On September 8, 2020, Plaintiff Tobias Umana (“Plaintiff”) filed the Complaint in this action against Defendants Dana J. Busch (“Defendant Busch”), Maria Garcia (“Defendant Garcia”) and Grove Manor Mobile Home Park c/o St. Clair Property (“Defendant Grove Manor”). Proof of service of the Summons and Complaint was filed with respect to Defendant Garcia on May 13, 2022. On July 12, 2022, the Court discharged the Order to Show Cause re Failure to File Proof of Service. (Minute Order, 07/12/22.)

Defendant Garcia, through a special appearance, filed the instant Motion to Quash Service of the Summons and Complaint on August 25, 2022. No opposition has been filed to date.

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.)

Defendant Garcia moves to quash service of the Summons and Complaint on the grounds that she was not served personally, nor by substitute service, and the proof of service only shows that the papers were mailed to an address that is not her home or work address. (Motion, Garcia Decl., ¶¶2-5.) The proof of substitute service filed on May 13, 2022 is not attested to by a registered process server. (Proof of Substitute Service, filed 05/13/22, ¶7.) It also confusingly states that the papers were mailed to Defendant Garcia, while simultaneously referring to “proof of personal service.” (Id. at ¶2.) Therefore, the burden of proving service in conformity with the statutory requirements, falls to Plaintiff.

In light of Defendant Garcia’s denial that she was personally served, which correlates to the note that service was by mail, the Court finds the proof of service is facially defective. Specifically, it does not meet the requirements for service by mail pursuant to Code of Civil Procedure section 415.30, which includes “two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid.” (Code Civ. Proc., § 415.30, subd. (a).) The Court also finds good cause for the timing of the Motion given that the papers were not delivered to any address associated with Defendant Garcia.

Plaintiff has filed no opposition to the Motion demonstrating that this purported service of the Summons and Complaint on Defendant Garcia meets the statutory requirements, as is Plaintiff’s burden.

Conclusion

Therefore, Specially Appearing Defendant Marcia Garcia’s Motion to Quash Service of the Summons and Complaint is GRANTED.

ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS IS SET FOR NOVEMBER 29, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.