Judge: Nathan Vu, Case: 30-2021-01220068, Date: 2022-10-24 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Quash
Specially Appearing Defendant Kenneth Shelton, Jr.’s Motion to Quash Service of Summons is DENIED.
Specially Appearing Defendant Kenneth Shelton, Jr. shall file a responsive pleading no later than 15 days after service of the notice of ruling. (See Civil Proc. Code, § 418.10, subd. (b).)
Specially Appearing Defendant Kenneth Shelton, Jr., moves to quash service of summons.
Civil Procedure Code section 418.10(a)(1) provides that “[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 . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Civil Proc. Code, § 418.10, subd. (a)(1).)
In this case, the proof of service filed by Plaintiff Colleen Osborne on 04/28/2022 purports to have served Defendant Shelton by mail and acknowledge of receipt pursuant to Civil Procedure Code section 415.30 and mail service to an out-of-state defendant pursuant to Civil Procedure Code section 415.40. (See ROA #35.) (fn.1)
However, Civil Procedure Code section 415.30(c) states that “[s]ervice 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.” (Civil Proc. Code, § 415.30, subd. (c).) Plaintiff submitted no signed written acknowledge of receipt of summons and therefore, the service of process was not effectuated pursuant to Section 415.30(c).
Thus, the only issue is whether service was proper pursuant to Civil Procedure Code section 415.40. That statute provides that: “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.”
“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove . . . the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, quotations omitted; see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Ct. (1988) 206 Cal.App.3d 1222, 1232.)
This burden, however, shifts when a properly executed proof of service has been filed. Filing a proof of service that complies with the applicable statutory standards creates a rebuttable presumption that service was proper. (Floveyor Int’l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)
As an initial matter, this motion is untimely. A defendant who is served with a summons and complaint must respond within 30 days, although Section 415.40 grants “a 10-day grace period before the time for the defendant to answer begins to run.” (Civil Proc. Code, § 412.20; Johnson & Johnson v. Superior Ct. (1985) 38 Cal.3d 243, 250.) Further, the motion to quash must be brought within the time period to respond. (Civil Proc. Code, § 418.10, subd. (a)(1).)
The proof of service shows that the summons and complaint were mailed to Defendant Shelton on 04/22/2022. Thus, the motion had to be filed by 06/01/2022. Defendant Shelton did not file the instant motion until 06/20/2022 and fails to show good cause for this delay.
However, even if the court considered the motion on its merits, the court must still deny the motion to quash. In this case, Plaintiff filed a properly executed proof of service showing service upon Defendant Shelton pursuant to Section 415.40. (See ROA #35.) Specifically, the proof of service showed that the summons, complaint, and related documents were served by certified mail, with return receipt requested. (Ibid.)
This creates a rebuttable presumption of proper service, which Defendant Shelton fails to overcome. Although the proof of service attached a return receipt with blank spaces where the recipient was to sign, that does not render the proof of service deficient as the return receipt was pre-delivery. Plaintiff shows that the return receipt was signed upon delivery, and Plaintiff submits a true and correct copy of that return receipt with the opposition papers. (See Thompson Decl. ¶ 12, Exh. 7.)
Second, the fact that the return receipt was signed by someone named “Sheton” who was identified as an “agent” does not raise any reasonable suspicion that the documents were not delivered to the addressee at the listed address. The errors on the return receipt, if any, were not material and Defendant Shelton does not argue that he did not receive actual notice of this action. (See Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1435-1437 [“In deciding whether service was valid, the statutory provisions regarding service of process ‘should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant . . . .’ Thus, substantial compliance is sufficient.”], quoting Pasadena Medi-Center Associates v. Superior Court (1979) 9 Cal.3d 773, 778.)
Plaintiff shall give notice of this ruling.
(fn.1) Plaintiff also asserts that she served Defendant Shelton by substituted service pursuant to Civil Procedure Code section 415.20. However, the proof of service filed by Plaintiff on 04/28/2022 specifically does not check the box for substituted service. (See ROA #35, Box 5.b.) Plaintiff’s process server did not state that he or she effectuated substituted service on Defendant Shelton and the court will ignore this unsupported argument.