HEARING DATE: May 1, 2024 TRIAL DATE:  June 6, 2024 

 

CASE:  Marcela Pineda Sanchez v. Frank Lobos 

 

CASE NO.:  22STCV38464 

 

 

 

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT 

 

 

MOVING PARTY: Specially Appearing Defendant Frank Lobos 

 

RESPONDING PARTY: Plaintiff Marcela Pineda Sanchez 

 

 

I. BACKGROUND 

 

On December 8, 2022, Plaintiff, Marcela Pineda Sanchez, filed a Complaint against Defendant, Frank Lobos, arising from a motor vehicle collision. 

 

On January 31, 2024, Plaintiff filed a proof of service showing Defendant was served with the Summons and Complaint by substituted service on January 26, 2024.  Plaintiff’s registered process server served Defendant’s co-occupant “Sara Lobos” mailbox at 18718 Ambler Ave, Carson, CA 90746-2125 (the “Residence”) and mailed the Summons and Complaint to the same address.  Defendant discovered the Summons and Complaint in his mailbox on January 29, 2024. 

 

On February 15, 2024, Defendant filed this motion to quash Plaintiff’s service of the Summons and Complaint.  Defendant further moves to dismiss the action pursuant to Code of Civil procedure sections 583.240 and 583.410. 

 

Plaintiff filed an opposition.  Defendant replied.  

 

II. LEGAL STANDARD 

 

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served.  (Code Civ. Proc., § 415.10.)  If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leave 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 person apparently in charge ... and by thereafter mailing a copy of the summons and complaint by first-class mail ... 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).) 

 

A defendant must file a motion to quash service of summons on or before the last day on which the defendant must plead unless the time is extended by stipulation or by a judge’s order for good case.  (Code Civ. Proc., § 418.10, subd. (a)(1).)  Although the notice of motion must designate a hearing date not more than 30 days after the notice is filed, scheduling a hearing date beyond the 30-day time period does not deprive the court of jurisdiction to consider the merits of the motion.  (Olinick v. BMB Entertainment (2006) 139 Cal.App.4th 1286, 1295-96.) 

 

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to ... the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].)  However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs.  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42.)  Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)  

 

When a defendant moves to quash service of summons, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”¿ (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) 

 

III. DISCUSSION 

 

Defendant argues that the court lacks personal jurisdiction over him for two reasons: (1) Plaintiff cannot show reasonably diligent efforts to personally serve him, and (2) substitute service was not properly effectuated.   

 

The court finds Defendant’s second argument has merit.1  Code of Civil Procedure section 415.20, subdivision (b) provides: “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.”  

 

Here, Plaintiff’s registered process server states that a co-occupant named “Sara Lobos” accepted service on Defendant’s behalf on January 26, 2024 at 7:18 a.m. at the Residence.  The process server describes “Sara Lobos” as a 55-year-old Hispanic female, 5’6” tall, weighing 150 pounds, and has brown eyes and brown hair.  (See Proof of Service of Summons.)  However, Defendant submits the declaration of his wife, Sarai Lobos, who states, that she was not at the Residence at 7:18 a.m. on January 26, 2024, “as [she] had already left a little before 7:00 a.m. that morning to take [her] son to school at St. John Bosco High School in Bellflower, California.”  (Declaration of Sarai Lobos, ¶ 4.)  She further states that she is “not “Hispanic” in appearance and do[es] not have brown hair[.]”  (Id. ¶ 5.)  Rather, her hair “is completely grey/silver in color, and [she has] a light complexion that is more European in appearance[.]”  (Id. ¶ 6.)  Further, Sarai Lobos also points out she is “incorrectly identified as … “Sara” Lobos.”  (Id. ¶ 7.)  Although the filing a proof of service by a registered process server creates a rebuttable presumption that service was proper (American Express Centurion Bank, supra, 199 Cal.App.4th at p. 390), based on the foregoing, Defendant rebuts that presumption.  Defendant submits evidence to show Plaintiff’s process server could not have left the Summons and Complaint “in the presence of a competent member of the household,” (here, Defendant’s wife, Sarai Lobos).  Indeed, the Declaration of Sarai Lobos tends to show that the process server’s declaration is false.   

 

Without valid service of summons, the court does not acquire jurisdiction over  a defendant.  (Code Civ. Proc., § 418.10, subd. (a)(1); see¿Kremerman v. White¿(2021) 71 Cal.App.5th 358, 371.)  “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. [Kappel v. Bartlett (1988) 200 CA3d 1457, 1466, 246 CR 815, 821; Ruttenberg v. Ruttenberg¿(1997) 53 CA4th 801, 808, 62 CR2d 78, 82]”  (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2023) ¶ 4:414.)  So too here.  Plaintiff has not effectuated proper service of the Summons and Complaint.  The court does not have jurisdiction over Defendant.  Plaintiff does not submit any evidence or argument to the contrary. 

 

Motion to Dismiss 

 

Defendant further seeks dismissal of this action pursuant to Code of Civil Procedure sections 583.240 and 583.410.   

 

“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”  (Code Civ. Proc., § 583.410, subd. (a).)  “Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.”  (Code Civ. Proc., § 583.410, subd. (b).)  “The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.”  (Cal. Rules of Court, rule 3.1340(a); see also Code Civ. Proc., § 583.420, subd. (a)(1).) 

Here, this action was commenced against Defendant less than two years ago.  Therefore, this case may not be dismissed for delay in prosecution.   

 

VI. CONCLUSION 

 

The motion to quash is GRANTED. 

 

The motion to dismiss is DENIED. 

 

Moving party to give notice, unless waived.