Judge: Mark E. Windham, Case: 22STLC03523, Date: 2024-04-09 Tentative Ruling

Case Number: 22STLC03523    Hearing Date: April 9, 2024    Dept: 26

Mojaver v. Bayard, et al.

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendant Michael J. Bayard’s Motion to Quash Service of the Summons and Complaint is GRANTED. ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF SUMMONS IS SET FOR APRIL 30, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On May 25, 2022, Plaintiff Michael M. Mojaver (“Plaintiff”), in propria persona, filed the Complaint in this action against Defendant Michael J. Bayard (“Defendant”). Proof of service by mail was filed on February 28, 2023 and April 10, 2023. The case came for trial on November 22, 2023, at which time the Court placed the trial off calendar and set an order to show cause regarding Plaintiff’s failure to enter Defendant’s default and default judgment. (Minute Order, 11/22/23.)

The Motion to Quash was filed by Defendant on February 1, 2024 and was initially set for hearing in Department 25 in the Spring Street Courthouse. On February 29, 2024, the case was transferred to Department 26 in the Spring Street Courthouse. No opposition has been filed to date.

Discussion

Defendant moves to quash service of the Summons and Complaint on the grounds that Plaintiff did not serve them in the statutorily required manner. The Motion is brought pursuant to Code of Civil Procedure section 418.10, which states: “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.)

Neither proof of service by mailing is attested to by a registered process server. (Proofs of Service, filed 02/28/23 and 04/10/23, ¶7.) “Service of a summons [by mail] is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.” (Code Civ. Pro., § 415.30, subd. (c).) Defendant has properly challenged service of the Summons and Complaint by filing this action and attesting in their own declaration that they did not sign the acknowledgment of receipt. (Motion, Bayard Decl., ¶¶1-6.) The signature on the proof of service filed on February 28, 2023 is by “R. Bayard”; the proof of service filed on April 10, 2023 is signed by “Micheal Boyard.” Neither is the correct spelling of Defendant’s name and neither matches Defendant’s signature on their declaration. (Motion, Bayard Decl., p. 2.) The burden now shifts to Plaintiff to demonstrate that Defendant was the individual who signed the acknowledgments of receipt dated February 23, 2023 and March 2, 2023. As Plaintiff has not filed an opposition to the instant Motion, however, they have not carried their burden of proof.

The Court also finds that the Motion is timely because it demonstrates Defendant was never served with the Summons and Complaint as required by statute. Therefore, the last day for Defendant to file a response to the action has not yet passed.

Conclusion

Therefore, Specially Appearing Defendant Michael J. Bayard’s Motion to Quash Service of the Summons and Complaint is GRANTED. ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF SUMMONS IS SET FOR APRIL 30, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.