Judge: Mark E. Windham, Case: 24STLC00616, Date: 2024-05-09 Tentative Ruling

Case Number: 24STLC00616    Hearing Date: May 9, 2024    Dept: 26

Interinsurance Exchange v. Ortega, et al.

MOTION TO QUASH SERVICE

(CCP § 418.10)

TENTATIVE RULING:

Defendant Sebastian Ortega’s Motion to Quash Service of the Summons and Complaint is GRANTED.

ANALYSIS:

On January 29, 2024, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the Complaint in this action against Defendant Sebastian Ortega (“Defendant”). Plaintiff filed proof of substitute service on March 12, 2024. On April 8, 2024, Defendant filed the instant Motion to Quash Service of the Summons and Complaint. 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 sub-serve him. 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 brought within 30 days of the purported 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 is attested to by a registered process server, thereby placing the burden on Defendant to overcome the presumption of truth in the return of service. (Proof of Service, filed 03/12/24, ¶7.) The proof of service states that Defendant was served by leaving the papers at 20117 Bedford Canyon Rd., Corona, CA on March 1, 2024 with FELIX “John Doe” (Refused Last Name), Co-Occupant Description: Hispanic, MaIe, 50+ yrs oId, 5’ 7” tall, 200+ lbs., black hair.” (Id. at ¶5.) Defendant submits a declaration stating at he was not at home on March 1, 2024 and does not know anyone by the name of Felix, or who matches that description. (Motion, Ortega Decl., ¶¶2, 5-6.)

This declaration is sufficient to overcome the presumption of truth in the proof of service and place the burden on Plaintiff to demonstrate that service occurred as stated. However, no opposition has been filed. Therefore, Defendant has demonstrated grounds to quash service of the Summons and Complaint as attempted on March 1, 2024.

Conclusion

Defendant Sebastian Ortega’s Motion to Quash Service of the Summons and Complaint is GRANTED.

Court clerk to give notice.