TENTATIVE

Specially Appearing Defendant Vitalijs Filatovs’ motion to quash service of summons and complaint is DENIED as MOOT.

Legal Standard

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .”  (Code Civ. Proc., § 418.10(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 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.) 

Discussion

Specially Appearing Defendant moves to quash service of the summons and complaint on grounds that Defendant was not validly served. 

Specially Appearing Defendant seeks a court order quashing the service of summons and complaint on grounds that Defendant has not been validly served with the summons and complaint. Defendant argues that it is not possible that substituted service was effectuated on Specially Appearing Defendant at 13941 Sherman Way, Unit 40, Van Nuys, CA 91405, as recited in the submitted Proof of Service filed on July 15, 2022, because Unit 40 does not exist. (Declaration of Taylor Scarcella ¶ 4). The Units are numbered 401-410 etc., with no double-digit units at this address. (Id.) Thus, Specially Appearing Defendant could not have been served at an address that does not even exist. It is further believed that Specially Appearing Defendant does not reside in the United States. (Id., ¶ 6; Miskell Decl., ¶ 4; Exh. B.) According to the Traffic Collision Report, Specially Appearing Defendant was driving a rental car at the time of the alleged incident, and listed an Airbnb Rental Property as the address (Scarcella Dec., ¶ 6; Miskell Decl., ¶ 4; Exh.C.) According to the Accident/Incident Report, Specially Appearing Defendant provided an address outside of the country, in Latvia. (Id.)

In opposition, while Plaintiff argues that the initial service of July 6, 2022 was effective, Plaintiff has taken affirmative steps by effectuating another service of the summons and complaint on August 26, 2022 via substituted service upon Defendant pursuant to California Civil Code section 1939.33, as Defendant was operating a rental vehicle at the time of the incident, in order to put to rest any alleged deficiencies thereof. (Exh. 1.)

Civil Code section 1939.33 states that: “When a rental company enters into a rental agreement in the state for the rental of a vehicle to any renter who is not a resident of this country and, as part of, or associated with, the rental agreement, the renter purchases liability insurance, as defined subdivision (b) of Section 1758.85 of the Insurance Code, from the rental company in its capacity as a rental vehicle agent for an authorized insurer, the rental company shall be authorized to accept, and, if served as set forth in this section, shall accept, service of a summons and complaint and any other required documents against the foreign renter for any accident or collision resulting from the operation of the rental vehicle within the state during the rental period. If the rental company has a registered agent for service of process on file with the Secretary of State, process shall be served on the rental company's registered agent, either by first-class mail, return receipt requested, or by personal service.” (Cal. Civ. Code § 1939.33.)

As such, Plaintiff argues that given Defendant has been properly served, the present motion should be denied as moot.

Specially Appearing Defendant argues that Plaintiff does not have any confirmation that service was perfected on August 26, 2022, pursuant to Civ. Code § 1939.33, because Plaintiff did not serve the rental company’s registered agent by first class mail, return receipt requested, nor by personal service.

However, after Defendant’s reply was filed, Plaintiff filed another proof of service on September 9, 2022, indicating that it served the agent for service of process for Avis Car Rental by mail, return receipt requested. As such, the motion to quash is denied as MOOT.

Conclusion

Accordingly, the motion to quash service of summons and complaint is DENIED as MOOT. 

Specially Appearing Defendant is ordered to give notice.