Judge: Serena R. Murillo, Case: 21STCV08288, Date: 2022-12-05 Tentative Ruling

Case Number: 21STCV08288    Hearing Date: December 5, 2022    Dept: 29

TENTATIVE

Specially Appearing Defendant Edward James Kalafus’ Motion to Quash Service of Summons is GRANTED.

Legal Standard 

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, 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).)  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Id. § 412.20(a)(3).)  “Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.”  (Id. § 418.10(e)(3).)

“[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.”  (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

Discussion 

Specially Appearing Defendant (“Defendant”) moves to quash service of summons and complaint, arguing that Plaintiffs did not properly serve Defendant and instead served Defendant’s father at Defendant’s parents’ house in Michigan.

Plaintiff filed a proof of service indicating that on August 19, 2022, she served the Summons and Complaint on Defendant Kalafus at 7380 Stony Creek Rd. Ypsilanti, MI 48197 by personal service. (Kalafus Decl., Ex. A.)

Defendant contends Plaintiff’s service is improper pursuant to Code of Civil Procedure section 415.10, which provides “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” Further, Code of Civil Procedure section 415.20, subdivision (b), provides “a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, or usual mailing address. . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.”  Defendant argues service was improper, and should therefore be quashed, because Defendant does not reside in Michigan, that is his parents’ house, service was made on Defendant’s father. He further declares that he did not authorize anyone to accept mail on his behalf. (Kalafus Decl., ¶¶ 2-6.)

As such, Defendant has presented sufficient evidence to show that service was defective as Defendant does not live at his parents’ house in Michigan, did not authorize anyone to accept mail on his behalf, and Plaintiff served Defendant’s father.

In opposition, Plaintiff argues that Defendant has made a general appearance by propounding discovery on September 20, 2022. However, Defendant filed a motion to quash on September 19, 2022. Code of Civil Procedure § 418.10(e)(1) provides that by a party who makes a motion to quash service of summons constitutes an appearance. As such, Defendant has not made a general appearance.

Additionally, Plaintiff argues that Defendant has not submitted evidence that he does not reside at the address service was effected or that is not his usual mailing address. However, Defendant has filed a declaration signed under penalty of perjury that he does not live at that address, and did not authorize anyone to accept his mail, which is sufficient evidence.

Conclusion

Accordingly, Specially Appearing Defendant’s Motion to Quash Service of Summons is GRANTED.

Moving party is ordered to give notice.