Judge: Michael P. Linfield, Case: 23STCV15454, Date: 2023-09-14 Tentative Ruling

Case Number: 23STCV15454    Hearing Date: September 14, 2023    Dept: 34

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SUBJECT:        Motion to Quash Service

Moving Party: Specially-Appearing Defendant Hay Tanning

Resp. Party:    None

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

BACKGROUND:

On July 3, 2023, Plaintiff Benita Elliott a Complaint against Defendant Hay Tanning on a cause of action for harassment.

On July 18, 2023, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons.

On August 15, 2023, Specially-Appearing Defendant filed his Motion to Quash Service. In support of his Motion, Specially-Appearing Defendant filed: (1) Declaration of Hay Tanning; (2) Exhibits; (3) Notice of Lodging; (4) Proposed Order; and (5) Proof of Service.

Plaintiff has not filed an opposition or other response to the Motion.

ANALYSIS:

I.          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 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).)

II.       Discussion

On July 18, 2023, Plaintiff filed Judicial Council Form POS-010, Proof of Service of Summons. Among other things, the Proof of Service of Summons declares that personal service was made on Defendant on July 13, 2023 at 9:00 p.m. at 5206 Veronica Street, Los Angeles, CA 90008.

Specially-Appearing Defendant declares that he was never personally served and that he could not have been on that date as he had been visiting family members in the Commonwealth of Pennsylvania. (Decl. Tanning, ¶¶ 2–3.) Specially-Appearing Defendant provides flight records, car rental records, other declarations, and a video of the attempted service in support of his claim. (Exhibits, A–D.)

Plaintiff has not opposed the Motion.

Specially-Appearing Defendant demonstrates that he was not, in fact, personally served at the listed address on July 13, 2023. Substantial evidence supports that he was in Pennsylvania, and the video shows that the process server never physically saw or interacted with anyone, much less Specially-Appearing Defendant. Thus, the Court must grant the Motion.

III.     Conclusion

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