Judge Ronald F. Frank, Case Number: 22TRCV01088, Date: 2024-02-15 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV01088, Date: 2024-02-15 Tentative Ruling

Case Number: 22TRCV01088 Hearing Date: February 15, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: February 15, 2024

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CASE NUMBER: 22TRCV01088

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CASE NAME: Laura Phan vs Keesey, et al.

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MOVING PARTY: Specially appearing Defendant, Tracy Cavaretta

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RESPONDING PARTY: Plaintiff,

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TRIAL DATE: None set

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MOTION:¿ (1) Motion to Quash

Tentative Rulings: (1) Grant, but the Court will consider a future application to serve by publication in light of plaintiff’s reasonably diligent efforts to effect service at multiple addresses they found for her

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¿ I. BACKGROUND¿¿

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A. Factual¿¿

This is an action for declaratory relief regarding allegedly unpaid legal services that defendant allegedly requested and received from the Plaintiff.¿ ¿¿Plaintiff contends it has been in communication with Defendant Cavaretta’s counsel who declined to accept service of the suit papers, resulting in months of attempts at service of process. Plaintiff filed to proof of service purporting to show service of the Summons and Complaint on Plaintiff’s former client, including a certified mail proof of service with an attached green card signed in the state of Florida at an address Plaintiff claims to have been discovered through investigation efforts. Ms. Cavaretta filed this motion to quash asserting that she was not at the Florida address or anywhere in that state during the month in which the purported service occurred, and he declaration asserts she does not own or live at that address.

¿II. ANALYSIS¿

A. Legal Standard ¿

“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.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See¿American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See¿id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar¿(2011) 194 Cal.App.4th 1419, 1428; cf.¿People v. Chavez¿(1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See¿Yadegar, supra, 194 Cal.App.4th at 1428.) Code of Civil Procedure section 415.40 authorizes service by registered mail where the serving party presents a proof of service bearing a signed return receipt reflecting actual delivery to the defendant.

B. Discussion

Here the Court has a declaration of Tracy Cavaretta attesting to her absence from the state as well as from the location to which Plaintiff’s skip tracing indicated a valid residential address. Moreover, Plaintiff has a signed return receipt or “green card” signed by someone to indicate acceptance of the delivery of the package containing the Summons and Complaint. The problem with the green card is that the signature does not purport to be that of Ms. Cavaretta; rather, on its face it appears to be a totally different person, apparently James M. Sewat. There is no evidence before the Court that Mr. Sewat is the named defendant or has any relationship to Ms. Cavaretta. The Court does not consider an unknown and unidentified person, who signed for a package delivered to his address, to be sufficient service of a Summons and Complaint for a named defendant without any further showing than presented here. The Motion to Quash is thus GRANTED.

However, the Court would likely consider Plaintiff’s attempts at service of process to constitute sufficient due diligence to consider granting an application to serve by publication.