Judge: Peter A. Hernandez, Case: 21PSCV00999, Date: 2022-10-24 Tentative Ruling
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Case Number: 21PSCV00999 Hearing Date: October 24, 2022 Dept: O
Specially Appearing Defendant U.S. Bank
National Association as Legal Title Trustee for
Truman 2016 SC6 Title Trust’s unopposed
Motion to Quash Service and Set Aside Default
is GRANTED.
Background
This is a wrongful foreclosure action concerning the property located at 1068 Trevecca Place in Claremont, California 91711.
“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. . . (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.) Pursuant to Code of Civil Procedure § 473, subdivision (d), “[t]he court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.”
“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 existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [quotation marks and citation omitted].)
Discussion
Specially appearing Bank moves the court for an order quashing the service of summons on the basis of improper service and to vacate the court’s entry of default against Bank on January 27, 2022.
Request for Judicial Notice
The court rules on Bank’s Request for Judicial Notice (RJN) as follows: Denied as to Exhibits 1-8 as irrelevant (Surfrider Foundation v. California Regional Water Quality Control Bd. (2012) 211 Cal.App.4th 557, 569, fn. 7 [denying request for judicial notice where documents were “not relevant to [court’s] analysis”]); Granted as to Exhibit 9 (i.e., Agent/Registrant Information filed with Ohio Secretary of State for Bank as of April 21, 2022); and Granted as to remaining “N/A” requests (i.e., proof of service filed January 24, 2022, “Notice of Rejection Default/Clerk’s Judgment” filed January 26, 2022, proof of service filed January 27, 2022 and Request for Entry of Default filed and entered on January 27, 2022, respectively).
Merits
On January 24, 2022, Plaintiffs filed a proof of service, which indicated that Bank was served by substitute service at 425 Walnut Street in Cincinnati, Ohio. The proof of service had box 3b checked, indicating that the person who effectuated service (i.e., a “Rev. Tony Hodge,” not a registered California process server) served someone other than Bank, and box 5b checked, indicating that said person was attempting substitute service. The proof of service, though, did not identify the purported relationship between April Collins (the person the documents were purportedly left with) and Bank. Further, the proof of service did not indicate that mail service was thereafter effectuated to Bank to complete substitute service. Plaintiff’s request for entry of default was denied on January 26, 2022, with the court noting, inter alia, that the “Proof of Service of Summons filed 01/24/22 is faulty.”
On January 27, 2022, Plaintiffs filed another proof of service, wherein box 3b was not checked; further, the second page contained handwriting next to box 6d which was different from that contained elsewhere on the proof of service. Box 5b(4) was not checked and there was no information as to any mailing of the documents to Bank. Default was entered that day.
Bank contends that it was never validly served. At the outset, the court notes that, pursuant to Code of Civil Procedure § 413.10, subdivision (b), a summons served on a person outside this state but within the United States must be served as provided in Code of Civil Procedure §§ 413.10 to 417.40, as prescribed by the law of the place where the person is served or as otherwise provided by statute. Code of Civil Procedure § 415.20, subdivision (a) provides that:
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.
It is evident that valid substitute service was not effectuated here; at a minimum, both proofs of service fail to indicate that Hodge thereafter mailed “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.” Plaintiffs have failed to oppose the motion whatsoever.
The motion to set aside default and quash the service of summons is granted. The January 27, 2022 entry of default is ordered vacated. Plaintiffs must properly serve Bank before a responsive pleading is required.