Judge: Mark E. Windham, Case: 22STLC07722, Date: 2023-05-04 Tentative Ruling

Case Number: 22STLC07722    Hearing Date: May 4, 2023    Dept: 26

United Financial Casualty Company v. Elijah Dashawn King, et al.

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Defendant Elijah Dashawn King’s Motion to Quash Service of the Summons and Complaint is GRANTED.


ANALYSIS:

On November 15 2022, Plaintiff United Financial Casualty Company (“Plaintiff”) filed the Complaint in this action against Defendants Elijah Dashawn King (“Defendant”) and Florissa Delos Reyes. On May 3, 2023, Defendant filed the instant Motion to Quash Service of the Summons and Complaint.

Proof of substitute service was filed on March 27, 2023. As of May 1, 2023, no opposition has been filed.  

Discussion

Defendant moves to quash service of the Summons and Complaint on the grounds that the Complaint and Summons were not left with a competent member of the household at Defendant’s residence because no one with the description provided in the proof of service resided in his household. Defendant contends that he has never been otherwise served in any manner with the Summons or Complaint.

1.      Legal Standard

“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.)

2.      There is a Rebuttable Presumption

Here, the proof of substitute service filed on March 27, 2023, was attested to by a registered process service and filed prior to Defendant’s filing of the instant motion to quash. (Proof of Substitute Service, filed 3/27/23, ¶7.) However, given that the proof of service contains a declaration from a registered process server, there is a rebuttable presumption that service was properly effectuated. The proof of service states that Defendant was served by substituted service by leaving the Summons and Complaint at 3637 Koufax Dr Lancaster, CA 93534 with Sergio Doe, described as “Co-resident, Hispanic male, 30 years old, brown hair, brown eyes, 5’7’’, 180 lbs.” (POS 3/27/23, ¶¶3-5.) The papers were delivered on February 25, 2023 at 1:49 pm and thereafter mailed on February 26, 2023. (Id. at ¶5 and Declaration of Mailing. Service was effective on March 8, 2023 (ten days after mailing). (Code Civ. Proc., § 415.20, subd. (b).)

3.      Defendant Rebuts the Presumption

Defendant’s Motion to Quash presents evidence to rebut the presumption of the truth of the facts stated in the Proof of Service. The Motion is supported by the declaration of Defendant, who claims that he has not been personally served with the Summons and Complaint, that there is no one with the description provided in the proof of service that resides in his household, that no one in his household was ever handed a Summons and Complaint, and that he has never been otherwise served in any manner with the Summons and Complaint in this case. (King Decl., ¶¶3-6.)

The Motion argues that Plaintiff failed to properly comply with the requirements for substituted service under Code of Civil Procedure section 415.20(b) because the Summons and Complaint were not left in the presence of a competent member of the household or a person apparently in charge. Defendant’s declaration establishes that the statute was not effectuated because was no person that resides in his household with the description provided in the proof of service. Therefore, the Court finds that Defendant has carried his burden of overcoming the facts stated in the return of service and relief under Code of Civil Procedure section 418.10 is proper.

Conclusion

Defendant Elijah Dashawn King’s Motion to Quash Service of the Summons and Complaint is GRANTED.

Plaintiff to give notice.