Judge: Martha K. Gooding, Case: 21-01213127, Date: 2023-05-15 Tentative Ruling
1) Motion to Quash Service of Summons
2) Case Management Conference
3) Order to Show Cause re: Monetary Sanctions
Before the Court is a Motion by Defendant Ashik P. Patel (“Defendant”) asking the Court to quash service of summons on him. The Motion is DENIED.
On November 18, 2022, Plaintiff filed a proof of service of summons on Defendant. [ROA 102] The proof of service shows that, on November 8, 2022, Defendant was served by first class mail at “1252 N Eagle Lake Drive, Kalamazoo, MI 49009.” [Id.] A copy of a return receipt, signed on November 12, 2022, was attached. [Id.]
“It is well settled that ‘[i]n the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. [Fn. omitted.] [Citation.] When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ [Citations.]” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.)
“A summons may be served on a person outside this state… by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” (Code Civ. Proc., § 415.40.) If an out-of-state person was served by mail pursuant to section 415.40, proof of service of the summons “shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.” (Code Civ. Proc., § 415.20, subd. (b).) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper. [Citations.]” (Dill v. Berquist Constr. Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)
The trial court is the judge of credibility, whether the evidence is presented by live testimony, deposition testimony, or declarations and affidavits. (Whitlock v. Foster Wheeler (2008) 160 Cal.App.4th 149, 160; Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) A court is “not required to accept as true the sworn testimony of a witness, even in the absence of evidence directly contradicting it, and this rule applies to an affidavit. [Citation.]” (Lohman v. Lohman (1946) 29 Cal.2d 144, 149.) While “[t]he general rule is that ‘the unimpeached and uncontradicted testimony of a witness, not inherently improbable, cannot be arbitrarily disregarded and should be accepted as true by the trier of fact… uncontradicted testimony may be disbelieved because there are so many omissions in a witness' account of a particular transaction or of his own conduct as to discredit his whole story; that the testimony may be inherently improbable due to uncertainty or interest or bias of a witness; and that the accuracy of positive assertions giving a wrong coloring to material facts may be doubted and rejected.” (Tammen v. San Diego County (1967) 66 Cal.2d 468, 477.)
In support of his motion to quash service of summons, Defendant submitted a declaration stating: (1) the signature on the return receipt is not his signature; (2) he was not at the Kalamazoo address on November 12, 2022 but was traveling in Indiana at the time; (3) his wife is the only other person who had authority to sign for him at the Kalamazoo address; (4) he is very familiar with his wife’s handwriting and the signature on the return receipt is not hers; and (5) his wife was traveling with him in Indiana on November 12, 2022. [ROA 106, A. Patel decl., ¶ 4-5]
There is no dispute that Plaintiff complied with Code of Civil Procedure section 415.40. Plaintiff’s filing of the proof of service created a rebuttable presumption that service was proper. Defendant attempts to rebut the presumption by filing a declaration stating that neither he nor his wife signed the return receipt. Because Plaintiff did not submit any controverting evidence in opposition, Defendant contends in reply that he should prevail.
The Court disagrees. The Court is not required to wholesale accept Defendant’s declaration and there are reasons to disbelieve it. Defendant’s Declaration leaves much unsaid. For example: Defendant’s Declaration does not dispute that the Kalamazoo address is the proper address. It does not state that he did not actually receive the summons. It does not explain how he became aware of the summons. It does not explain who was staying at Defendant’s house on the day of service, or who signed the receipt. Defendant argues in reply that his attorney is already representing the other defendants and that the attorney received a copy of the proof of service as a result of such representation. But there is no declaration by the attorney. And, in any event, that would not explain Defendant’s silence regarding how he obtained knowledge about the summons. Lastly, the Court has reason to disbelieve Defendant because he has an interest in quashing the summons.
In sum, the Court does not find Defendant’s declaration to be credible and finds that Defendant did not rebut the presumption that service was proper. Accordingly, the Motion to quash service of summons is DENIED.
Case Management Conference is CONTINUED to July 3, 2023 at 9:00 a.m., along with the hearing on the OSC re Monetary Sanctions.
Plaintiff is ordered to give notice.