Judge: Michelle C. Kim, Case: 21STCV35114, Date: 2023-04-24 Tentative Ruling

Case Number: 21STCV35114    Hearing Date: April 24, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Luis Lopez Nunez and Raquel Jimenez (collectively, “Plaintiffs”) filed this action against Defendant Joseph Tyler McVeigh and Angela Cooper McVeigh for damages arising from a motor vehicle accident. 

At this time, Defendant Joseph Tyler McVeigh (“Joseph”) moves to quash service of summons and complaint.  No opposition has been received. 

On October 24, 2022, Plaintiffs filed proof of service of the summons and complaint on Joseph alleging Defendant was served by personal service at an address located 772 Thrush Drive Big Bear Lake, CA 92315, on June 30, 2022.

2. Motion to Quash Service Summons

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]”  (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].) 

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.”  (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg)) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.”  (Ruttenberg, supra, 53 Cal.App.4th at p. 808.)  “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.”'  (Id. at p. 809.)

Here, Joseph asserts that he did not live at the Big Bear Lake address listed on the proof of service at the time of service, and that he was living out of state in Oregon on the date of the purported service.  Joseph attests that he has never resided at the Big Bear Lake address.  Joseph argues that as a result, Plaintiffs’ purported service of the summons and complaint was improper. 

When a defendant files a motion to quash, the burden is on the plaintiff to establish that service of the summons and complaint was proper.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)  Any opposition to the motion was due on or before April 11, 2023.  No opposition has been filed.  Because the motion is unopposed, Plaintiffs necessarily did not meet the burden to establish that service was proper. 

            The motion to quash service of summons and complaint is therefore granted. 

Moving Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 24^th day of April 2023