Judge: Michael E. Whitaker, Case: 22SMCV02287, Date: 2023-10-18 Tentative Ruling

Case Number: 22SMCV02287    Hearing Date: October 18, 2023    Dept: 207

TENTATIVE RULING

MOTION

This case stems from an automobile collision that occurred on or about November 5, 2020.  (Complaint ¶ 8.)  Defendant Sonia Antoun (“Defendant”), specially appearing, moves to quash service of the summons and complaint.  Plaintiff Alexander Ramos (“Plaintiff”) opposes the motion.  Defendant replies. 

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).) 

“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

Plaintiff has provided two proofs of service, indicating that Defendant Refat Antoun was served via personal service and Defendant Sonia Antoun was served via substitute service, on Refat Antoun, a co-occupant of Defendant Sonia Antoun’s home, on August 7, 2023.

            Defendant attached a declaration to the motion to quash, indicating (1) Defendant Refat Antoun passed away in the fall of 2020, shortly after the accident; and (2) no individual fitting the description in the proof of service (78-year-old Caucasian male weighing 180 pounds with salt and pepper hair and a height of 5’8”) resides at Defendant’s residence, or was present in the home on August 7, 2023, when service was supposedly effectuated.  (Antoun Decl. ¶ 5.)

            Plaintiff has opposed the motion, requesting jurisdictional discovery, and arguing that substitute service on Defendant was proper because it demonstrated reasonable diligence in attempting to personally serve her before resorting to substitute service.

            Jurisdictional discovery is not appropriate here.  Plaintiff cites to cases where the basis for a motion to quash is lack of personal jurisdiction.  By contrast, here, Defendant contends that the failure to properly serve the summons and complaint itself is the reason the Court lacks jurisdiction.  Defendant does not contend that she does not live in California or that the vehicle collision did not occur in California.  Rather, Defendant contends that personal jurisdiction is lacking because of defective service of the summons and complaint.  Thus, personal jurisdiction generally is not at issue here, and jurisdictional discovery on the issue of personal jurisdiction is inappropriate.

            With respect to diligence, Defendant does not challenge Plaintiff’s diligence.  Plaintiff attached to the proof of service a declaration of diligence, indicating that it unsuccessfully attempted personal service on Defendant at her home on July 31, August 3, and August 6, before finally attempting substituted service on August 7.

            But ultimately, Defendant has provided a declaration, signed under penalty of perjury, indicating that the man Plaintiff allegedly served at Defendant’s residence is deceased, and no man fitting that description resides with Defendant or was present in Defendant’s home on the date of the purported service.

CONCLUSION AND ORDER

            Plaintiff has not established valid service of the summons and complaint on Defendant through substitute service.  Therefore, the Court grants Defendant’s motion to quash and orders the service of the summons and complaint on Defendant quashed.  

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

DATED:  October 18, 2023                            ___________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court