Judge Mark E. Windham, Case Number: 23STLC07098, Date: 2024-02-21 Tentative Ruling

Judge: Mark E. Windham, Case: 23STLC07098, Date: 2024-02-21 Tentative Ruling

Case Number: 23STLC07098 Hearing Date: February 21, 2024 Dept: 26

Wilson v. Huber, et al.

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendant Catherine Huber’s Motion to Quash Service of the Summons and Complaint is DENIED. PLAINTIFF IS TO FILE AN AMENDED PROOF OF SERVICE WITHIN TEN (10) DAYS OF THIS ORDER. DEFENDANT IS TO FILE A RESPONSIVE PLEADING TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On November 6, 2023, Plaintiff Brandy Wilson (“Plaintiff”) filed the Complaint in this action against Defendant Katherine Huber (“Defendant”). Proof of substitute service was filed on December 5, 2023. The instant Motion to Quash was filed by Defendant on December 27, 2023. Plaintiff filed an opposition on January 30, 2024 and Defendant replied on February 2, 2024.

Discussion

Defendant moves to quash service of the Summons and Complaint on the grounds that Plaintiff did not properly sub-serve her as required by Code of Civil Procedure section 415.20. Defendant contends that service was not made with reasonable diligence to a co-occupant of her dwelling house or usual place of abode, despite so falsely stating in the proof of service.

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, attested by a registered process server, states that Defendant was sub-served by leaving the Summons and Complaint with “Tracy Keyser, tenant,” a competent member of the household at the dwelling house or usual place of abode of Defendant. (Motion, Hawkins Decl., Exh. 2, ¶5.) The household is stated to be located at 8718 St. Ive Drive, Los Angeles, California. (Id. at Exh. 2, ¶4.) The proof of service is admittedly incorrect in its representation of 8718 St. Ive Drive as Defendant’s dwelling house or usual place of abode. Rather, service was attempted at Defendant’s usual mailing address under Code of Civil Procedure section 415.20, subdivision (b), which provides:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . .

(Code Civ. Proc., § 415.20, subd. (b).) Defendant does not deny that 8718 St. Ive Drive is her usual mailing address. Rather, she denies that 8718 St. Ive Drive is her dwelling house or usual place of abode. (Motion, Huber Decl., ¶¶6-8.) That the papers were served to this address, therefore, does not render service defective.

Next, Defendant contends that Plaintiff did not make a reasonably diligent attempt to personally serve the papers because the only attempts were made at 8718 St. Ive Drive, which was not Defendant’s dwelling home or usual place of abode. In opposition, Plaintiff points to Hearn v. Howard (2009) 177 Cal.App.4th 1193, in which attempts at personal service at a private post office box rental store, listed as the defendant’s business address, constituted reasonable diligence. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1202-1203.) Defendant argues that Howard is distinguishable because that defendant held the service address out as their business address, whereas Defendant did not hold 8718 St. Ive Drive out as her business address. The Court finds that this is an irrelevant difference. Defendant does not dispute that 8718 St. Ive Drive is her usual mailing address; she merely argues that there is no evidence it is. The defendant in Howard was no more likely to be found at the post office box rental store than Defendant would be expected to be found at 8718 St. Ive Drive. Both locations were where the defendants picked up their mail; the Howard court did not find post office box rental store was a location where the defendant spent a significant amount of time in order to deem it a proper place to attempt personal service. (Id. at 1202.)

Finally, Defendant’s motion itself points out that “[s]tatutes governing substitute service shall be ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.... [Citation.]’ [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [citing Ellard v. Conway (2001) 94 Cal.App.4th 540, 544].) Defendant does not deny receipt of actual notice of the action. Like the question of Defendant’s usual mailing address, the Motion dances around the answer without providing an express denial. Indeed, the Motion is not supported by a declaration from Defendant herself. The declaration of Defendant’s mother, Melony Huber, who owns 8718 St. Ive Drive, simply states that she does not know the address of Defendant’s current dwelling house or usual place of abode. (Motion, Huber Decl., ¶9.) Yet Defendant was able to timely file the instant Motion to Quash, demonstrating actual notice of the action.

Based on the foregoing, the Court finds that Plaintiff effectuated service in accordance with the statutory requirements. The Court does note that the proof of substitute service incorrectly sets forth the manner of service. Plaintiff is ordered to file an amended proof of service reflecting that service was effectuated at Defendant’s usual mailing address under the provisions of Code of Civil Procedure section 415.20, subdivision (b).

Conclusion

Court clerk to give notice.