Judge: Peter A. Hernandez, Case: 23STCV15454, Date: 2024-08-22 Tentative Ruling
Case Number: 23STCV15454 Hearing Date: August 22, 2024 Dept: 34
Specially Appearing Defendant Hay Krisster Tanning’s
Motion to Quash Service of Summons is GRANTED.
Background
Plaintiff Benita Elliott (“Plaintiff”) alleges that Defendant Hay Krisster Tanning (“Defendant”) harassed her on numerous occasions at home.
On July 3, 2023, Plaintiff filed a complaint, asserting a cause of action against Defendant and Does 1-20 for Harassment.
On September 23, 2023, the court granted Defendant’s Motion to Quash Service of Summons. On April 15, 2024, the court granted Defendant’s second Motion to Quash Service of Summons.
Defenant’s Motion to Dismiss was denied on April 15, 2024. That
same day, the court gave Plaintiff “one more opportunity to properly serve Defendant
in this matter.” (See April 15, 2024 Minute Order.)
A Case Management Conference, OSC Re: Dismissal and Motion for Continuance is set for August 22, 2023.
Legal Standard
“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. . .” (Code Civ. Proc., § 418.10, subd (a)(1).)
“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
Defendant specially appears and moves the court for an order quashing service of the summons and complaint on the basis of improper service. He argues that Plaintiff did not personally serve the Defendant pursuant to Code of Civil Procedure section 415.10 and, alternatively, that Plaintiff did not properly affect substituted service pursuant to section 415.20(b).
Merits
Code of Civil Procedure section 415.10 provides that “[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.”
Code of Civil Procedure section 415.20, subdivision (b) governs the requirements for substitute service in this instance and provides that “[i]f 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.
Defendant represents that the Proof of Service of Summons (“POS”) filed on June 14, 2024 is defective. A review of the POS asserts that Defendant was served the summons and complaint at 5206 Veronica Street, Los Angeles, CA 90008. The POS does not indicate whether it was served personally or by substituted service. There are no check marks on Items Nos. 5.a. or 5.b. Moreover, Item 5.c. is checked which asserts that Defendant was served by mail and acknowledgment of receipt of service and references an attachment. That attachment is an affidavit in support, which purportedly is signed by Plaintiff not the person referred to in Item 7 a. (Princess Obienu).
As an initial matter then, the court finds that the POS was made by mail and acknowledgment of receipt of service. Under Code of Civil Procedure section 415.30:
(a)
A summons may be served by mail as provided in this
section. A copy of the summons and of the complaint shall be mailed (by
first-class mail or airmail, postage prepaid) to the person to be served,
together with two copies of the notice and acknowledgment provided for in
subdivision (b) and a return envelope, postage prepaid, addressed to the
sender.
(b) The notice specified in
subdivision (a) shall be in substantially the following form:
(Title of court and cause, with action number, to be inserted by the
sender prior to mailing)
NOTICE
To: (Here state the name of the person to be served.)
This summons is served pursuant to Section 415.30 of the California Code
of Civil Procedure. Failure to complete this form and return it to the sender
within 20 days may subject you (or the party on whose behalf you are being
served) to liability for the payment of any expenses incurred in serving a
summons upon you in any other manner permitted by law. If you are served on
behalf of a corporation, unincorporated association (including a partnership),
or other entity, this form must be signed in the name of such entity by you or
by a person authorized to receive service of process on behalf of such entity.
In all other cases, this form must be signed by you personally or by a person
authorized by you to acknowledge receipt of summons. Section 415.30 provides
that this summons is deemed served on the date of execution of an
acknowledgment of receipt of summons.
___________________________________________
Signature of sender
ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
This acknowledges receipt on (insert date) of a copy of the summons and of
the complaint at (insert address).
Date: ___________________________________________
(Date this acknowledgement is executed)
Signature of person acknowledging receipt,
with title if acknowledgment is made on
behalf of another person
(c) Service of a summons pursuant to this section is deemed
complete on the date a written acknowledgment of receipt of summons is
executed, if such acknowledgment thereafter is returned to the sender.
(d) If the person to whom a
copy of the summons and of the complaint are mailed pursuant to this section
fails to complete and return the acknowledgment form set forth in subdivision
(b) within 20 days from the date of such mailing, the party to whom the summons
was mailed shall be liable for reasonable expenses thereafter incurred in
serving or attempting to serve the party by another method permitted by this
chapter, and, except for good cause shown, the court in which the action is
pending, upon motion, with or without notice, shall award the party such
expenses whether or not he is otherwise entitled to recover his costs in the
action.
(e) A notice or acknowledgment
of receipt in form approved by the Judicial Council is deemed to comply with
this section.
As set forth in section (c), “[s]ervice of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.” However, if the party does not acknowledge receipt, then there is no “effective service” and Defendant merely becomes liable for reasonable expenses of service. (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199.) Here, the court is not aware that an acknowledgment of receipt of summons was provided by Defendant to Plaintiff. Therefore, there is no effective service.
Plaintiff, then, has not met its burden “to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers, supra, 140 Cal.App.4th at 413).
The motion is granted.