Judge Ralph C. Hofer, Case Number: 23GDCV00695, Date: 2023-12-22 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV00695, Date: 2023-12-22 Tentative Ruling

Case Number: 23GDCV00695 Hearing Date: December 22, 2023 Dept: D

TENTATIVE RULING

Calendar: 7

Date: 12/22/2023

Case No: 23 GDCV00695 Trial Date: None Set

Case Name: Racho v. Faulkner

MOTION TO QUASH SERVICE OF SUMMONS

Moving Party: Defendant Charles Faulkner, Specially Appearing

Responding Party: Plaintiff Mario Racho

FACTUAL BACKGROUND:

Plaintiff Mario Racho alleges that on August 20, 2022, defendant Charles Faulkner negligently operated, owned, and entrusted a motor vehicle causing injuries or damages to plaintiff.

The form complaint alleges causes of action for Motor Vehicle and General Negligence.

ANALYSIS:

CCP § 418.10 permits a defendant, on or before the last day of his time to plead, to serve and file a motion to quash service of summons “on the ground of lack of jurisdiction of the court over him...” § 418.10(a)(1).

With respect to a motion to quash for lack of jurisdiction, the burden is on plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Mihlon v. Superior Court (1985, 2nd Dist.) 169 Cal.App.3d 703, 710; Ziller Electronic Labs GmbH v. Superior Court (1988, 2nd Dist.) 206 Cal.App.3d 1222, 1232-1233.

Plaintiff must make this showing based on admissible evidence. Ziller, at 1233; see also Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.

Defendant seeks to quash service of the summons on defendant by personal service, arguing that the summons and complaint were not served on defendant as represented in the proof of service of summons received by defendant, as defendant was not personally served as alleged because he was not home at the time of service. Defendant indicates that it was not until days later that defendant discovered some legal documents left on the ground outside his front door.

The proof of service shows personal service on defendant at an address in Ripley, Ohio on August 27, 2023, at 4:23 PM. [POS, paras. 3, 4]. Under CCP section 415.10, “A summons may be served by personal delivery of the summons and complaint to the person to be served.”

The proof of service indicates by checking a box that the person who served the papers, Shannon Day, is not a registered California process server. [POS, para. 7(e)(1)]. The proof of service inserts some language concerning “STATE OF OH,” but does not check the box concerning registration in California. [POS, para. 7 (e)(3)(iii)].

Plaintiff in opposition argues that defendant was properly and personally served by a process server contracted by attorney service USA Legal, that the proof of service complies with all statutory standards, and that this creates a rebuttable presumption that service was proper under Evidence Code section 647.

Evidence Code § 647 provides:

“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of 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.”

Again, the proof of service executed by the process server checks the box stating, with respect to the “Person who served papers,” “I Am: not a registered California process server.” [POS, para. 7, 7(e)(1)]. The process served accordingly was not registered pursuant to the applicable California Business and Professions Code sections, and plaintiff has submitted no evidence otherwise.

The presumption with respect to the original return of the process server accordingly does not arise.

However, plaintiff has also submitted a declaration of the process server Shannon Day, who declares that service was made as represented, and describes the service as follows:

“I arrived at the residential address, 7376 Gardner Road, Ripley, OH 45167 at approximately 4:20 PM. Upon my arrival, I witnessed three cars parked on the driveway, and took a photo. I knocked on the door and personally served the defendant, Charles Faulkner (description: Caucasian Male, Approx: 48 years old, 6’2”, 260lbs with dark brown hair) at 4:23PM. When I knocked a male, 48, 6’2, 260lbs, with dark brown hair wearing a tie-dye shirt came around the corner of the home, from the back yard. I inquired if he was Charles Faulkner, to which he skeptically asked for my reason. Calmly, I informed him about the legal documents I had for him, and I handed them over.”

[Day Decl., p.1:13-25].

The process server declaration goes on to state:

“Upon completing my task, I drove down the street to input my next destination into the GPS. As I merged onto the highway, my eyes caught sight of a familiar black Lexus SUV, the same one that had been parked in Mr. Faulker’s driveway. It tailed me persistently for approximately 8-9 miles before veering off into a school parking lot and executing a U-turn. While I couldn’t be certain, it felt like a deliberate attempt to intimidate me.”

[Day Decl., p. 1:20-25].

Plaintiff also submits a declaration of plaintiff’s counsel in which counsel indicates that after receiving the motion to quash, counsel reached out to USA Legal and requested a declaration from the process server but did not provide the motion to quash to USA Legal, and received the Day declaration. [Green Decl., para. 7-8]. Plaintiff also submits a California Driver License of defendant, issued in 2019, which shows a birthdate, photo, height, weight, and hair color matching the process server description. [Green Decl., para. 10, Ex. E].

Defendant has submitted his own declaration, in which he states:

“3. Service of process under California Code of Civil Procedure section 415.10 is invalid because I was never personally served with the summons and complaint. The Proof of Service is inaccurate.

4. I was not at home at the 7376 Gardner Road, Ripley, Ohio address at the time the summons and complaint were allegedly served. I normally do not use my front door to

enter and exit my house but do so through the garage at the back of the house. It was not until August 30, 2023 when I went to get the mail that I opened my front door that I noticed that some papers that were stapled together (not in an envelope) had been left on the ground outside my front door. These papers were barely legible because they were wet as it had been raining for a few days. I was able to make out a case number from the papers. These papers could’ve been the summons and complaint, but I am not sure.

5. There was no one else living with me at the 7376 Gardner Road address on August 27, 2023. I never received a copy of the summons and complaint in the mail or anything from plaintiff’s attorney in the mail.”

[Faulkner Decl., paras. 3-5].

It is held that where the parties’ evidence conflicts on the jurisdictional facts, the trial court must determine credibility. Its decision will not be disturbed on appeal as long as it is supported by substantial evidence. Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.

The evidence is clearly conflicting here, as the process server indicates service was appropriately made, and defendant indicates it was not made as represented.

The opposition argues that the declaration of the process server here, made without the process server having read defendant’s declaration or motion, is consistent with portions of defendant’s declaration filed here. Specifically, the process server stated that defendant came around the corner of his home from the back yard when she knocked on his front door, which is consistent with defendant’s contention that he does not normally use his front door, but normally exits his home from the garage at the back of the house. [Faulkner Decl., para. 4]. Plaintiff also argues that defendant declared that no one else was living with him at the residence on the date of service, so that there would be no reason any other individual, particularly one matching defendant’s description, would have come around the house from the back yard, spoken to the process server, and received the papers. Plaintiff argues that based on the process server declaration, as well as independent evidence consisting of defendant’s representations, the process server can reasonably be believed.

The court accordingly weighs this testimony and will determine which account is more credible.

It is particularly persuasive that the process server independently described that defendant did not answer the door, but came around from the back, when defendant described his preference for using his back door in support of his own explanation why service was not made personally as described. Defendant’s declaration also does not provide any facts which would support a broad statement that he was not at the service address at the time. Ordinarily, such a declaration would include facts such as that defendant was traveling or was at work and typically did not leave work before 5 pm, or that defendant recognizes the date as a time when he had an appointment elsewhere. The lack of such detail supports an inference that defendant cannot offer evidence such as travel documents, a timeclock time, or a calendar which would verify the statement he was not at the service address. In addition, the account of the process server concerning defendant following her after service had been accomplished is construed by the court as supporting a reasonable inference that defendant was aware that he had been unexpectedly served.

The defendant in opposition is testifying under oath in this matter that he was not served as represented, and the process server likely had the drivers’ license description in advance. In addition, although the declaration of plaintiff’s counsel indicates that defendant was served “after multiple attempts,” those prior attempts are not described, and the process server could have observed defendant coming and going in from the back of the home on other occasions, to lend credibility to the account.

The court has weighed this conflicting testimony and finds the process server’s testimony is more credible than the defendants’ testimony. The court finds that the process server’s detailed declaration is credible by reference to evidence submitted by defendant himself. The court finds that the process server declaration stating that she served the papers as represented is credible and contains sufficient detail to rebut the defendant’s broad self-serving statements. The court therefore denies the motion.

RULING:

Defendant Charles Faulkner’s Motion to Quash Service of Summons is DENIED. The Court finds the account of the process server credible, particularly in light of the witness having no access to defendant’s account of the service of process but supplying details which are consistent with defendant’s declaration. Defendant is ordered to file and serve response to complaint within thirty days.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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