Judge: Michael E. Whitaker, Case: 23SMCV03193, Date: 2023-10-03 Tentative Ruling

Case Number: 23SMCV03193    Hearing Date: October 3, 2023    Dept: 207

TENTATIVE RULING

MOTIONS

            Defendants Galen Elizabeth Berger (“Galen”) and Douglas O. Berger (“Douglas”) (collectively, “Defendants”) appear specially and move to quash service of the summons and complaint.  Defendants have each filed nearly identical motions to quash.  Plaintiff Susan Ellen Rosen (“Plaintiff”) has filed identical oppositions to each motion.  Defendants have not filed 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. (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.)  

First, “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (Code Civ. Proc. § 415.10.)  Alternatively, 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).)

DISCUSSION

            This case arises from an alleged incident on March 15, 2023 in Beverly Hills, where Galen allegedly struck Plaintiff with the vehicle she was driving, which Douglas owns.  Plaintiffs Susan Ellen Rosen and Stuart Rosen filed the complaint in this matter on July 17, 2023. 

            The proofs of service filed with the Court on August 7, 2023, indicate each Defendant was served by substitute service on July 22, 2023 by leaving copies of the summons and complaint with Kirsten Perkins, the occupant at 6336 W. 82nd St. in Los Angeles, California 90045-2838, and subsequently mailing copies of the summons and complaint to Defendants at the same address.  The Declarations of Diligence indicate that the process server attempted to personally serve each Defendant at that address on July 20, 2023 at 11:15 a.m.; on July 21 at 3:30 p.m., and July 22, 2023 at 10:45 a.m.  There was apparently no answer on the first two attempts, and on the third attempt, the notation provides “Subject not home per occupant.”    

Notwithstanding, Defendants have produced declarations indicating that the address listed on the proofs of service is not the current residence for either Defendant.  Specifically, paragraph five of Galen’s Declaration provides, “I have been living in New York since June 1, 2023.”  Paragraph five of Douglas’s Declaration indicates, “I have never lived at 6336 W. 82nd Street, Los Angeles, CA 90045.”  Galen’s Declaration indicates it was signed in New York, and Douglas’s Declaration indicates it was signed in South Carolina.

In opposition, Plaintiff produces a copy of the police report for the incident, which indicates the officer identified Galen by her “valid South Carolina Driver License” and lists her address as 6336 W. 82nd St., Los Angeles, CA 90045.  The police report provides a different address in South Carolina for Douglas.

Defendants have provided sufficient evidence that neither of them resided at the service address when substitute service was supposedly effectuated.  Nothing in the record refutes this.  The evidence demonstrates that, while Galen may have a previous association with the service address, she has lived in New York since June 1, 2023.  Thus, when the process server left the summons and complaint with “Kirsten Perkins-Occupant” of the 82nd St. address on July 22, 2023, it was no longer Galen’s residence.  Moreover, there is no evidence in the record to suggest that Douglas ever lived at that address, and Douglas has affirmatively asserted in his declaration that he has not.

CONCLUSION AND ORDER

            Based upon the record, the Court finds that Defendants have rebutted the presumption of proper service of the summons and complaint, and in turn, the Court finds that Plaintiff has not met her burden in demonstrating that Defendants were properly served with the summons and complaint by substituted service.

Accordingly, the Court grants Defendants’ motions to quash service of summons and complaint.  Further, the Court sets a Status Conference re service of the summons and complaint on Defendants on November 16, 2023 at 8:30 A.M. in Department 207. 

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

DATED:  October 3, 2023                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court