Raul Velazquez, et al., v. Antonio Luis Augusto

SPECIALLY-APPEARING DEFENDANT ANTONIO LUIS AUGUSTO’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

 

MOVING PARTY: Specially-Appearing Defendant Antonio Luis Augusto

RESPONDING PARTY: None

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Raul Velazquez and Sonia Parra bring this action against Defendant Antonio Luis Augusto after they sustained injuries in a motor vehicle accident.

Specially-Appearing Defendant Augusto now moves to quash service of the summons and complaint. No opposition was filed. 

TENTATIVE RULING:

Specially-Appearing Defendant’s Motion to Quash Service is GRANTED.

Moving party is ordered to give notice, unless waived.

DISCUSSION:

Motion to Quash Service of Summons and Complaint

A. Legal Standard 

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:  (1) [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).)  “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”  (Id. at pp. 1441-1442.)  When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)  “A court lacks jurisdiction over a party if there has not been proper service of process.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

B. Analysis

Specially-appearing Defendant Antonio Luis Augusto moves to quash service of the summons and complaint on the basis that he was never served in this action. Personal service is service “by personal delivery” (Code Civ. Proc., § 415.10), and “ ‘usually contemplates actual delivery.’ ” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212; Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832 [“ ‘Personal service’ means the actual delivery of the papers ... in person.”].) A registered process server's declaration of service creates a rebuttable presumption of proper service. (Am. Express Centurion Bank v. Zara (2011) 199 Cal. App. 4th 383, 390.)

Plaintiffs filed a Proof of Service of Summons indicating personal service on Defendant by a registered process server at 13921 Yukon Ave Apt 134, Hawthorne, CA 90250-8128, on September 4, 2024. (See 09/04/2024 Proof of Service.) Notably, the person served is described as being 46-years-old. (Id. ¶ 5(a).)

Specially-Appearing Defendant argues he was not the person served. He asserts that neither he nor any family members have ever resided at the Hawthorne address. (Mtn. 3: 16-18.) Rather, at the time of the purported service, Defendant resided in Brazil. (Mtn. 3: 18-20.) Additionally, Defendant was born on April 29, 1950, meaning he is 74-years-old. (Exh. B.)

Of further note, based on Defendant’s research, the person actually residing at the Hawthorne address was a person by the name of Antonio Augusto Barczyszyn. (Exh. C.) Consistent with the Proof of Service, Barczyszyn is 46 years old. (Id.) Defendant notes the similarities between their two names—compare Antonio Luis Augusto with Antonio Augusto Barczyszyn. Therefore, Defendant asserts it was this individual who the process server mistook for Defendant. 

It should be noted that there is no declaration from the specially-appearing Defendant. Instead, the evidence comes from his counsel, Ryan N. Gilbert, who attests that “Defendant was not present at the stated address at the time of purported personal service” because “[a]t the time personal service was purportedly affected, Mr. Augusto resided in Brazil.” (Gilbert Decl. ¶ 3.) Gilbert provides a photocopy of Defendant’s Brazilian ID that he asserts “proves [Defendant’s] Brazilian residency.” (Id. ¶ 3, Exh. B.)

Plaintiff has not opposed the motion. (See Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868 [plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service”].)  On the evidence presented—and without any opposition—it preponderates that specially-appearing Defendant was not the person served at the Hawthorne address. Rather, the process server mistakenly served a younger individual with a similar name. Therefore, service was ineffective on Defendant.

IT IS SO ORDERED.

Dated:   December 5, 2024 ___________________________________