Judge: Mark H. Epstein, Case: 24SMCV01707, Date: 2024-12-10 Tentative Ruling

Case Number: 24SMCV01707    Hearing Date: December 10, 2024    Dept: I

This is a motion to quash service of the summons.  The motion is DENIED.   

According to the proof of service, defendant was served personally on September 30, 2024.  Defendant, specially appearing, states he was not personally served, and moves to quash.

In response to the opposition, in which the process server stated that service was made, defendant in reply put in a declaration from his girlfriend, Sharona Cruz.  But new evidence is generally not permitted in reply, for the opposing party has no ability to respond to it or put in contrary evidence.  The court sees no exceptional circumstances here that would explain the lack of this evidence in the moving papers.  But even were the court to consider the declaration, it would not change things.

At the relative outset, the court hates these sorts of motions.  de Dood is aware of this case; the only issue is whether plaintiff has to stake out his home, workplace, or other locations so that he can be served.  Worse, if plaintiff sues him at work, he will likely complain of harassment.  Much better would be to handle this like adults and agree that service has occurred and agree on a response date.  That said, de Dood is under no requirement to act maturely, so the court will turn to the merits. 

de Dood claims that he did hear someone ring the doorbell, but he did not engage with that person and never came within 15 feet or so of the door.  He did see the person through the window, but retreated to the interior of his home.  Defendant contends that he only later learned through a friend about some “legal papers,” which the defendant claims he never saw.  Cruz, the girlfriend, declares that she and de Dood were watching television on the couch together.  de Dood left for 15 to 30 seconds and then came back, but Cruz did not hear him say anything.  The problem is that the court simply does not find de Dood to be credible.  The process server’s declaration is detailed.   The proof of service sets forth the defendant’s race, height, build, and weight.  Those things are not something likely to be ascertained through a window as to someone inside standing 15 or more feet away and retreating and visible only for a few seconds.  It makes more sense to believe that the person in fact did have a discussion from the window pictured in exhibit D to the declaration and as recounted in the process server’s declaration.  The court also notes that de Dood never says that the description is not accurate.  Further, the process server contends that defendant came to the door and the server recognized him.  She identified herself as a process server and he told her he would not accept service.  If credited—and the court finds the process server to be credible—that means that defendant was at the door and being told he was being served with papers but he refused to open the door.  The process server then left the papers at the door.  That is proper.  (Trujillo v. Trujillo (1945) 71 Cal.App.2d 257.)  In short, the court believes the process server and not de Dood.  As for Cruz, she may be mistaken as to the amount of time de Dood was gone from the couch and thus not being dishonest, but the court finds the process server’s testimony to be the more accurate and credible.

Accordingly, the motion is DENIED.  Defendant will have 5 court days to answer the complaint.