Judge: Michael P. Linfield, Case: 22STCV38707, Date: 2023-08-30 Tentative Ruling

Case Number: 22STCV38707    Hearing Date: August 30, 2023    Dept: 34

SUBJECT:        Motion to Quash Service of Summons

Moving Party: Specially-Appearing Defendant Michael Crosetti

Resp. Party:    Plaintiff Future Auto Sales, Inc.

The Motion is GRANTED. The Proof of Service is QUASHED.

BACKGROUND:

On December 13, 2022, Plaintiff Future Auto Sales, Inc. filed its Complaint against Defendants CDG Partnership, Patricia Del George, Maria Franklin, Yolanda M. Kahawaii, Juli Damazo, Michael Crosetti, Law Offices of Barry G. Florence, and Barry G. Florence on a cause of action of malicious prosecution.

On May 2, 2023, Plaintiff filed its Judicial Council Form POS-010, Proof of Service of Summons regarding Defendant Michael Crosetti.

On June 16, 2023, Defendants CDG Partnership, Patricia Del George, Yolanda M. Kahawaii, and Juli Damazo filed their Answer to the Complaint.

On July 14, 2023, Defendant Maria Franklin filed her Answer to the Complaint.

On August 2, 2023, Specially-Appearing Defendant Michael Crosetti filed his Motion to Quash Service of Summons. In support of his Motion, he concurrently filed: (1) Declaration of Michael Crosetti; (2) Declaration of Russell S. Wollman; and (3) Proof of Service.

On August 14, 2023, by request of Plaintiff, the Clerk’s Office dismissed with prejudice Barry G. Florence and Law Office of Barry G. Florence from the Complaint.

On August 17, 2023, Plaintiff filed its Opposition to the Motion. The Opposition includes a Request for Judicial Notice.

On August 23, 2023, Specially-Appearing Defendant filed his Reply regarding the Motion.

ANALYSIS:

I.          Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of five deeds filed with the Office of the Assessor-Recorder for the City and County of San Francisco. 

The Court GRANTS judicial notice to each of these items.

II.       Legal Standard

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.” (Code Civ. Proc., § 415.10.)

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (a).)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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 other than a United States Postal Service post office box, 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 other than a United States Postal Service post office box, 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)

“A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code Civ. Proc., § 415.30, subd. (a).)

“Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.” (Code Civ. Proc., § 415.30, subd. (c).)

“A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” (Code Civ. Proc., § 415.40.)

“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).)

III.     Discussion

On May 2, 2023, Plaintiff filed a Proof of Service that purported to demonstrate substitute service of Specially-Appearing Defendant had occurred on April 29, 2023 at 450 Murray Street, San Francisco, CA 94110.

Specially-Appearing Defendant moves the Court to quash the service of summons, arguing that service of Specially-Appearing Defendant at that address was improper because this address is not Specially-Appearing Defendant’s usual abode or place of business. (Motion, pp. 6:5–7, 7:3–4.)

Plaintiff opposes the Motion, arguing: (1) that Specially-Appearing Defendant is the owner of the residence at 450 Murray Street, San Francisco, CA 94110; (2) that on May 4, 2022, Specially-Appearing Defendant executed a Deed of Trust regarding this property that describes it as his “second home”; and (3) that Specially-Appearing Defendant has actual notice of service. (Opposition, pp. 1:4–7, 1:12–20, 2:23–24.)

        In his Reply, Specially-Appearing Defendant argues: (1) that the Request for Judicial Notice fails to prove that the address at issue is Specially-Appearing Defendant’s address; and (2) that actual notice does not amount to service. (Reply, pp. 2:12–13, 3:14.)

        The Court agrees with Specially-Appearing Defendant’s arguments.

First, Specially-Appearing Defendant correctly notes that actual service alone is not sufficient to serve him. (See, for example, Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414, [“(N)o 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.”].)

Second, all of the evidence submitted on this issue supports a finding that Specially-Appearing Defendants owns, but does not reside in, the residence located at 450 Murray Street, San Francisco, CA 94110. (See Proof of Service dated May 2, 2023; see also Decl. Crosetti, ¶ 3.) According to his own declaration, Specially-Appearing Defendant lives in Jakarta, Indonesia. (Decl. Crosetti, ¶ 4.)

        Specially-Appearing Defendant has submitted sufficient evidence to meet his burden of proof and overcome any presumptions against him.

IV.      Conclusion

The Motion is GRANTED. The Proof of Service is QUASHED.