Judge: Michael E. Whitaker, Case: BC714561, Date: 2023-02-01 Tentative Ruling

Case Number: BC714561    Hearing Date: February 1, 2023    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

            Defendant David Whiteside (Defendant) appears specially and moves to quash service of the summons and complaint.  Plaintiff David Whiteside (Plaintiff) opposes the motion.  Defendant replies.

REQUEST FOR JUDICIAL NOTICE

            The Court grants Defendant’s request for judicial notice.

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.”  (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”].)  

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, Plaintiff filed a proof of service on August 16, 2022, which reflects personal service on Defendant at 32861 Sussez Stakes Street, Menifee, CA 92584-7632 on August 10, 2022, at 12:55 pm.  (See Proof of Service filed August 16, 2022.)  However, Defendant states service is defective because the proof of service indicates Defendant was served as an individual.  However, the Summons and Complaint served on Defendant only list John Ivancic and Slavko Ivancic as Defendants in the action.  (See Request for Judicial Notice, hereinafter RFJC, Exhibits 3, 5.)  Defendant concludes for the Court to have personal jurisdiction over him in his capacity as the personal representative of the Estate of Slavko Ivancic, the summons would have to name the Estate of Slavko Ivancic as a defendant and would have to have been served on Erik Ivancic in his capacity as personal representative of the Estate of Slavko Ivancic. 

In opposition, Plaintiff argues the service at issue was substantially compliant with statutory requirements, valid service was established. “[A] finding of substantial compliance can only be sustained where (1) the records shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice.” (American Express Centurion Bank v. Zara (2011) 199  Cal.App.4th 383, 391; cf. Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“no California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service”].)

In support of this proposition Plaintiff avers the following, which Defendant does not dispute: (1) Defendant is the personal representative of the Estate of decedent Slavko Ivancic; (2) Defendant as the personal representative rejected Plaintiff’s Creditor Claim in Riverside Superior Court (RFJN, Exhibit 5); (3) Defendant’s present attorney was served with Plaintiff’s Motion for an Order Substituting Erik Ivancic as defendant for decedent Slavko Ivancic; (4) on July 22, 2022, the Court granted Plaintiff’s Motion to continue the present action against Erik Ivancic, the personal representative of decedent Slavko Ivancic (See July 22, 2022 Minute Order); (5) Defendant was personally served with the Summons and Complaint in this action on August 10, 2022.

Accordingly, the Court finds that Plaintiff’s service of the summons and complaint on Defendant as the representative of the Estate of decedent Slavko Ivancic was substantially compliant with statutory requirements, establishing valid service.

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 orders.