Judge: Mark E. Windham, Case: 23STLC07083, Date: 2024-01-30 Tentative Ruling

Case Number: 23STLC07083    Hearing Date: January 30, 2024    Dept: 26

Lee v. Shrenger, et al.

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendants Justin J. Shrenger and Law Offices of Justin J. Shrenger, APC’s Motion to Quash Service of the Summons and Complaint is GRANTED.

ANALYSIS:

On November 6, 2023, Plaintiff Jimmy Lee (“Plaintiff”) filed the Complaint in this action against Defendants Justin J. Shrenger and Law Offices of Justin J. Shrenger (“Defendants”). No proof of service has been filed. The Motion to Quash was filed by Defendants on December 7, 2023. No opposition has been filed to date.

Discussion

Defendants moves to quash service of the Summons and Complaint on the grounds that Plaintiff did not personally serve either defendant, did not provide more than one summons and complaint to Defendant’s representative, did not complete the summons and state whether the summons was for the individual or the corporate defendant, did not use due diligence before attempting substituted service and did not follow up substituted service with the required mailing. 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.) The Motion is timely because no proof of service of the Summons and Complaint has been filed with the Court, so the time for Defendants to file a responsive pleading has not yet passed.

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.)

As no proof of service has been filed, Defendants provide declarations setting forth the manner of service effectuated by Plaintiff. Specifically, they show that on November 7, 2023, Elva N. Tapia, an employee of Defendant Laws Office of Justin J. Shrenger, APC, was walking in the office parking lot when a person introduced as Plaintiff’s cousin handed her an envelope with one copy of the Summons and Complaint. (Motion, Tapia Decl., ¶¶1-3.) The Summons was not complete. (Ibid.) Tapia is the office manager for Defendant Law Offices of Justin J. Shrenger, APC and declares that no copy of the Summons and Complaint was mailed to the office. (Id. at ¶4.) Similarly, Defendant Shrenger declares that there has been no attempt to deliver the Summons and Complaint to him. (Motion, Shrenger Decl., ¶3.)

The Motion demonstrates that the purported service of the Summons and Complaint by delivery of a single and incomplete copy to Tapia does not satisfy the requirements for personal or substitute service under Code of Civil Procedure sections 415.10 and 415.20. No copy of the papers was personally delivered to Defendants, nor were the papers subsequently mailed to Defendants. (See Code Civ. Proc., §§ 415.10, 415.20. The burden falls to Plaintiff to prove effective service on Defendants but no opposition has been filed. Therefore, Defendants have demonstrated grounds to quash service of the Summons and Complaint as attempted on November 7, 2023.

Conclusion

Specially Appearing Defendants Justin J. Shrenger and Law Offices of Justin J. Shrenger, APC’s Motion to Quash Service of the Summons and Complaint is GRANTED.

Court clerk to give notice.