Judge Ralph C. Hofer, Case Number: 23GDCV01410, Date: 2024-10-11 Tentative Ruling

Plaintiff David A. Cordier alleges that in July of 2020, defendant John D. Early was named as a defendant in a lawsuit filed by his sister, Lucia C. Early. Plaintiff, who was then acting as the attorney of record for defendant’s mother and two sisters, personally served defendant with the summons and complaint in the earlier lawsuit while defendant was in La Canada, California. The complaint alleges that thereafter, defendant intentionally drove by plaintiff’s home and intentionally broke out a window in plaintiff’s Dodge van vehicle.

The complaint alleges that thereafter defendant engaged in a series of intentional acts aimed at plaintiff and intended to cause plaintiff emotional distress and personal humiliation and to interfere with plaintiff’s business operations, including impersonating plaintiff to use plaintiff’s email address to sign up to subscribe to emails from scores of different websites, and making repeated harassing telephone calls to plaintiff’s telephone number. Plaintiff alleges that as a result of defendant’s conduct, plaintiff has suffered damage to his vehicle, emotional distress, and has been required to expend unnecessary time in an effort to unsubscribe and secure information pursuant to the California Privacy Act.

It is also alleged that defendant Early defamed plaintiff on one or more occasions by referring to plaintiff, who is an attorney, as a crook or crooked, including making a defamatory statement by way of an email sent to multiple staff members of St. Bede the Venerable Catholic Church in La Canada and others, in which defendant referred to his sister’s attorney as a “crooked attorney.” Plaintiff alleges that the statements constitute defamation per se, were false, and were intentionally published in a matter constituting malice and oppression, and that defendant’s conduct has caused plaintiff to suffer harm to his reputation, shame, mortification and hurt feelings.

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

Here, defendant argues that defendant was not properly served with the summons and complaint. The proof of service on file with the court shows service on defendant Early “by mail and acknowledgment of receipt of service,” on June 17, 2024, “to an address outside California with return receipt requested. (Code Civ. Proc. § 415.40)” [POS, filed 06/20/2024, para. 5; RFJN, Ex. A]. The proof of service indicates the address of service was in Blacksburg, Virginia. [Id.]

“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 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.”

“Process consists of a copy, in proper form, of the summons and of the complaint, and must be sent by a form of airmail requiring a return receipt, postage prepaid, to the person on whom service is desired, generally at his place of residence….

Defendant in the motion argues that plaintiff with the proof of service has not filed any signed return receipt, as required under CCP § 417.20 (a), which provides, in pertinent part:

(a) If served in a manner specified in a statute of this state, as prescribed by Section 417.10, and if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.”

The proof of service which was filed with the court is not accompanied by any proof of actual delivery to the person to be served, by a signed return receipt or other evidence.

In addition, defendant has submitted a declaration stating that he did not in fact receive service of the summons and complaint by mail, indicating that defendant has been informed that plaintiff has filed a proof of service indicating that “he mailed a copy of the summons and complaint to me ‘with return receipt requested.’” [Early Decl., para. 3]. Defendant Early states, “I did not receive those documents in any mail that was delivered to me and therefore I did not sign and return any ‘return receipt.’” [Early Decl., para. 3].

This showing is sufficient to call into question the sufficiency of service, and whether personal jurisdiction has been established over defendant Early.

This showing shifts the burden to plaintiff to establish, by admissible evidence, by a preponderance of the evidence, that all jurisdictional criteria are met.

Plaintiff has failed to file timely opposition to this motion, and defendant’s counsel has confirmed that no timely opposition has been served. Plaintiff has accordingly failed to meet this burden.

Moreover, as noted in the moving papers, it appears from the file that plaintiff may not have in his possession a signed return receipt or proof of actual delivery to submit to the court, as after the filing of the proof of service on June 20, 2024, plaintiff appeared at a hearing on an Order to Show Cause Re: Why Sanctions Should Not be Imposed for Failing to File Proof of Service, and requested additional time to serve the named defendant, and also informed the court, “that he intends to Publish.” [Minute Order 06/26/2024; RFJN, Ex. C].

There has been no satisfactory proof of actual delivery to the person to be served submitted to the court, and the motion to quash is granted. The service purportedly made according to the proof of service filed on June 20, 2024 is quashed.

Defendant John D. Early’s UNOPPOSED Motion to Quash Service of Summons and Complaint is GRANTED on the ground plaintiff has failed to establish that service by mail on a person outside this state pursuant to CCP § 415.40 was appropriately made, as plaintiff has failed to include with the proof of service evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence, as required under CCP § 417.20. Service of summons and complaint on John D. Early, by mail to an address outside California, on June 17, 2024, according to proof of service filed with this Court on June 26, 2024, is ordered QUASHED.

Defendant John D. Early’s UNOPPOSED Request for Judicial Notice in Support of Special Appearance and Motion to Quash Service of Summons and Complaint is GRANTED.

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