Judge: Mark E. Windham, Case: 22STLC06101, Date: 2023-05-08 Tentative Ruling
Case Number: 22STLC06101 Hearing Date: May 8, 2023 Dept: 26
United Financial Casualty Company vs. Salvador
Carrillo
MOTION
TO QUASH SERVICE
(CCP § 418.10)
TENTATIVE RULING:
Defendant
Salvador Carrillo Mendoza’s Motion to Quash Service of the Summons and
Complaint is DENIED.
On September 20,
2022, Plaintiff United Financial Casualty Company (“Plaintiff”) filed the Complaint in this action against
Defendant Salvador Carrillo (“Defendant”). On December
23, 2022, Defendant filed the instant Motion to Quash Service of the Summons
and Complaint and answered.
Proof of
substitute service was filed on December 20, 2022.
Discussion
Defendant moves to quash service of the Summons and
Complaint on the grounds that the Summons and Complaint were not personally
served, but instead given to a family member, and that Defendant does not live where
Plaintiff served the Summons and Complaint.
“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.)
The proof of substitute service filed on December 20, 2022 was attested to by a registered process server. (Proof of Substitute Service, filed 12/20/22.) The burden of producing facts to dispute the proof of service, therefore, falls to Defendant. The proof of service states that Defendant was served by leaving the Summons and Complaint at 2174 Gaviota Ave., Apt. 1, Signal Hill, California 90755 with Mrs. Carrillo, co-occupant. The papers were delivered on November 26, 2022, at 3:29 p.m. and thereafter mailed to the same address on November 27, 2022. (Proof of Substitute Service, filed 12/20/22.) Service became effective on December 7, 2022 (ten days after mailing). (Code Civ. Proc., § 415.20, subd. (b).)
Defendant’s Motion to Quash does not present evidence to
rebut the presumption of the truth of the facts stated in the Proof of Service.
The Motion is not supported by any declaration. No facts are included to
demonstrate how Defendant has personal knowledge of service.
Crucially,
however, the Motion does not adequately address why the substitute service
attested to in the proof of service was improper. The person with whom the
papers are left need not be a member of the
family. (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393.) In addition,
Defendant does not state why where Plaintiff served him is not reasonably
calculated to give him notice of the lawsuit. (Zirbes v. Stratton
(1986) 187 Cal.App.3d 1407, 1417.) Therefore, Defendant has not carried his burden of overcoming
the facts stated in the proof of service and relief under Code of Civil
Procedure section 418.10 is not proper.
Conclusion
Defendant
Salvador Carrillo Mendoza’s Motion to Quash Service of the Summons and
Complaint is DENIED.
Plaintiff to give notice.