Judge: Mark H. Epstein, Case: 24SMCV01343, Date: 2024-12-23 Tentative Ruling

Case Number: 24SMCV01343    Hearing Date: December 23, 2024    Dept: I

The motion to quash is GRANTED.  Plaintiff alleges breach of contract and fraud against defendant Jones.  Defendant moves to quash, asserting that he was not properly served.  Although there is no opposition, at the last hearing plaintiff indicated that she did oppose the motion. 

There is a preliminary question.  Defendant served plaintiff at an address on Maxella Avenue.  However, that is not the address the court has on file.  If defendant did not serve the motion properly, then that would mean that the court cannot hear the motion.

Assuming that the court can hear the motion, defendant asserts two grounds.  The first is that the service was jurisdictionally out of time, and the second is that the personal service did not actually occur.  As to the first, the defense is wrong.  While the Code of Civil Procedure does set forth the time in which service should be accomplished, that is not a jurisdictional time limit.  Late service, while not a good thing, still counts.  Thus, even if defendant is correct that the service occurred at a time outside the statutory period, that would not be a ground to quash.

The more significant issue is whether defendant was actually served.  Service is technical; it is not enough that the defendant be aware of the lawsuit, defendant must also be properly served.  And that is a problem here.  The Notice and Acknowledgement is not sufficient because defendant did not sign it.  This is a form of service that is valid when it is filed containing the defendant’s signature because it demonstrates that defendant has acknowledged proper service.  The quid pro quo for obtaining that signature is that the defendant has a little bit more time to respond to the complaint.  Here, because defendant did not sign it, it is of no effect.  Of course, there are other ways to serve.  Personal service is one such way.  If a defendant is served personally, it does not matter whether defendant acknowledges it or not.  Here, there is a declaration of service by the process server.  However, the declaration does not state that the process server placed the complaint and summons into defendant’s hand or that defendant was at the door, knew that service was being attempted, and refused to open the door.  Rather, it shows that the process server (after making an unsuccessful attempt at what was believed to be defendant’s place of employment) went to the address and thinks that defendant might have been inside, but did not see him or speak with him.  That is not sufficient.  In addition, it appears that the summons and complaint might have been mailed to defendant.  That may be so, but mailing the summons and complaint to a defendant within California is not good service.  Because there is no evidence that defendant was properly served, coupled with defendant’s affirmative denial that he was served, the court does not believe it can find service was proper, and therefore the motion must be GRANTED.  Plaintiff may, however, continue to attempt service on defendant.

The court will float an alternative idea.  Because defendant is plainly aware of the case, rather than make plaintiff expend the time and money to effect service (for which defendant might well be forced to pay in the end), which could include having the process server show up at defendant’s workplace, some family event, at the child custody exchange to effectuate service in front of the child, or in the early morning hours, perhaps defendant will stipulate that he is served effective today.  That will mean that defendant will have 30 days from today to answer or otherwise respond to the complaint and we can all do away with the formality of serving defendant technically with process of which he is already aware.  In the court’s experience, agreeing to such a stipulation is what people do who believe that they will win on the merits; refusing is what people do when their major goal is to inflict harm or burden on the other side.  Having said that, there are exceptions to every rule, and defendant is under no obligation to agree to this proposal.  If defendant refuses to agree, the court will set a new CMC hearing and plaintiff will have to serve defendant according to Code.  The court will also direct defendant to be present in court personally—not remotely—if he wants to attend that hearing, or, if he has counsel, counsel may attend personally.  It is just a suggestion so that we can move forward.

The motion to quash is GRANTED.  Plaintiff alleges breach of contract and fraud against defendant Jones.  Defendant moves to quash, asserting that he was not properly served.  Although there is no opposition, at the last hearing plaintiff indicated that she did oppose the motion. 

There is a preliminary question.  Defendant served plaintiff at an address on Maxella Avenue.  However, that is not the address the court has on file.  If defendant did not serve the motion properly, then that would mean that the court cannot hear the motion.

Assuming that the court can hear the motion, defendant asserts two grounds.  The first is that the service was jurisdictionally out of time, and the second is that the personal service did not actually occur.  As to the first, the defense is wrong.  While the Code of Civil Procedure does set forth the time in which service should be accomplished, that is not a jurisdictional time limit.  Late service, while not a good thing, still counts.  Thus, even if defendant is correct that the service occurred at a time outside the statutory period, that would not be a ground to quash.

The more significant issue is whether defendant was actually served.  Service is technical; it is not enough that the defendant be aware of the lawsuit, defendant must also be properly served.  And that is a problem here.  The Notice and Acknowledgement is not sufficient because defendant did not sign it.  This is a form of service that is valid when it is filed containing the defendant’s signature because it demonstrates that defendant has acknowledged proper service.  The quid pro quo for obtaining that signature is that the defendant has a little bit more time to respond to the complaint.  Here, because defendant did not sign it, it is of no effect.  Of course, there are other ways to serve.  Personal service is one such way.  If a defendant is served personally, it does not matter whether defendant acknowledges it or not.  Here, there is a declaration of service by the process server.  However, the declaration does not state that the process server placed the complaint and summons into defendant’s hand or that defendant was at the door, knew that service was being attempted, and refused to open the door.  Rather, it shows that the process server (after making an unsuccessful attempt at what was believed to be defendant’s place of employment) went to the address and thinks that defendant might have been inside, but did not see him or speak with him.  That is not sufficient.  In addition, it appears that the summons and complaint might have been mailed to defendant.  That may be so, but mailing the summons and complaint to a defendant within California is not good service.  Because there is no evidence that defendant was properly served, coupled with defendant’s affirmative denial that he was served, the court does not believe it can find service was proper, and therefore the motion must be GRANTED.  Plaintiff may, however, continue to attempt service on defendant.

The court will float an alternative idea.  Because defendant is plainly aware of the case, rather than make plaintiff expend the time and money to effect service (for which defendant might well be forced to pay in the end), which could include having the process server show up at defendant’s workplace, some family event, at the child custody exchange to effectuate service in front of the child, or in the early morning hours, perhaps defendant will stipulate that he is served effective today.  That will mean that defendant will have 30 days from today to answer or otherwise respond to the complaint and we can all do away with the formality of serving defendant technically with process of which he is already aware.  In the court’s experience, agreeing to such a stipulation is what people do who believe that they will win on the merits; refusing is what people do when their major goal is to inflict harm or burden on the other side.  Having said that, there are exceptions to every rule, and defendant is under no obligation to agree to this proposal.  If defendant refuses to agree, the court will set a new CMC hearing and plaintiff will have to serve defendant according to Code.  The court will also direct defendant to be present in court personally—not remotely—if he wants to attend that hearing, or, if he has counsel, counsel may attend personally.  It is just a suggestion so that we can move forward.