Judge: Michael E. Whitaker, Case: 22STCV17063, Date: 2022-09-07 Tentative Ruling

Case Number: 22STCV17063    Hearing Date: September 7, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Margarita Krotova, Ingrid Krotova, and Tatyana Krotova (collectively, “Plaintiffs”) sued defendant Osama Deeb based on a motor vehicle collision.  Defendant appears specially and moves to quash service of the summons and complaint for improper service.  Plaintiffs have not filed an opposition to the motion.

ANALYSIS

“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. (2) To stay or dismiss the action on the ground of inconvenient forum.”  (Code Civ. Proc., § 418.10, subd. (a)(1)-(2).) 

“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.) 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).)

Here, Plaintiffs filed a proof of service on May 31, 2022, which reflects personal service on Defendant at 39 Rocky Knoll Irvine, CA 92612 on May 28, 2022.  (See May 31, 2022 Proof of Service.)

Defendant advances his own declaration.  Defendant states that he did not reside at the 39 Rocky Knoll address on the date of purported service, and has not lived at that address since he moved away nearly eight years ago.  (Declaration of Osama K. Deeb, p. 1; see Declaration of Ryan N. Gilbert, Exhibit B.)  Defendant also states that he has no relationship with the persons who currently reside at the 39 Rocky Knoll address.  (Ibid.)  Finally, Defendant avers that he was out of the country at the time of the purported service.  (Ibid.; see Declaration of Ryan N. Gilbert, Exhibits C, D.)  Defendant therefore states that he has never received service of the summons and complaint in this case.  (Ibid.) 

The Court finds Defendant has advanced sufficient competent evidence to establish that Plaintiffs’ purported service on Defendant, personally, on May 28, 2022, was not proper as Defendant was not present at the 39 Rocky Knoll address on that date.  Accordingly, the Court concludes Defendant has rebutted the presumption that the facts stated in the process server’s declaration in the May 31, 2022 proof of service are true. (See Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper].)

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to quash service of summons and complaint for improper service per Code of Civil Procedure section 418.10, and quashes the service of the summons and complaint on Defendant. 

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