Judge: Michael E. Whitaker, Case: 22SMCV02078, Date: 2023-11-03 Tentative Ruling

Case Number: 22SMCV02078    Hearing Date: November 3, 2023    Dept: 207

TENTATIVE RULING

MOTION

Defendant Shawn King (“Defendant”) moves to quash service of the summons and complaint.  The motion is unopposed.

LEGAL STANDARDS

“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:  (1) 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).) 

“A general appearance by a party is equivalent to personal service of summons on such party.”  (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)  “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.”  (Ibid.)  “An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections.”  (Ibid.)  In other words, “[i]f the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.”  (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.) 

“In 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. 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.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“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’ ”].)   A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

            “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.  (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) 

For service on persons within California, generally, service of summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” a plaintiff may serve an individual defendant “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 . . . , 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 . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.”  (Code Civ. Proc., § 415.20, subd. (b).) 

ANALYSIS

Here, Defendant moves to quash service of the summons and complaint on the basis that the proof of service filed on August 30, 2023 indicates he was personally served at an address he has never lived at and has no association with.  (King Decl. ¶¶ 1-3.)

However, on September 21, 2023, Defendant filed an answer to the complaint.  The Court notes that Defendant’s answer was filed before the motion to quash was filed on September 28, 2023.  Thus, Defendant made a general appearance in advance of challenging the service of the summons and complaint, and in so doing, Defendant voluntarily submitted to the jurisdiction of this Court. 

CONCLUSION AND ORDER

            The Court denies Defendant’s Motion to Quash Service of the Summons and Complaint. 

            The Clerk of the Court shall provide notice of the Court’s ruling.     

DATED:  November 3, 2023                          ___________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court