Judge: Serena R. Murillo, Case: 21STCV32851, Date: 2022-08-19 Tentative Ruling
Case Number: 21STCV32851 Hearing Date: August 19, 2022 Dept: 29
TENTATIVE
Specially Appearing Defendant Fernan Marticio Balicoco’s motion to quash service of summons and complaint is GRANTED.
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.
Here, On November 8, 2021, Plaintiff filed a proof of service indicating that service on Defendant was made by personal service at the address for the Consulate General of the Philippines at 3435 Wilshire Blvd #550, Los Angeles, CA 90010. (Fradkin Decl. Exh. 2.)
Code of Civil Procedure Section 415.10 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.”
On January 19, 2022, Plaintiffs filed another proof of service indicating that service on Defendant was made by substituted service at 917 South Catalina Street, Apt. 4, Los Angeles, CA 90006, and the documents were left with Zan Balicoco, - subject’s brother. (Fradkin Decl., Ex. 3.) CCP section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, 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 . . . .” (Code Civ. Proc., § 415.20(b).)
Specially Appearing Defendant argues he is a Philippine citizen, and he was working for the Consulate General of the Philippines in Los Angeles at the time of the alleged vehicle collision. However, Specially Appearing Defendant argues that he no longer works at the Consulate General of the Philippine’s office and his service ended in June 2021. As a result, he could not have been personally served there in November 2021. Further, Specially Appearing Defendant argues the substitute service was improper because he does not live at the Catalina Street address, as he left the United States altogether in July 2021. Therefore, he argues, the Catalina Street address was not Specially Appearing Defendant’s dwelling house, usual place of abode, or usual mailing address.
A person’s dwelling house or usual place of abode is the place the person holds out as his or her principal residence and where he or she is mostly likely to receive actual notice. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1415-17.) Here, Specially Appearing Defendant states that he is not and never was a citizen of the United States. (Motion, Fernan Balicoco Decl., ¶ 2.) When the accident giving rise to this Complaint occurred, he was working in the United States, for the Philippine Consulate General. His duty with them ended in June 2021. (Id., ¶ 5.) He left the United States in July 2021. (Id., ¶ 6.) He has not been back to the United States, for any reason, since July 2021. (Id., ¶ 8.) He could not have been served in the United States at the Philippine Consulate General in November 2021, because he was no longer in service there and was no longer in the United States. (Id., ¶ 9.) He has not lived in the United States since July 2021, and has no address in the United States. Therefore, I could not have been served in the United States in January 2022, either, at any address, including the address in Los Angeles, claimed on the second Proof of Service provided by Plaintiff’s counsel. (Id., ¶ 10.)
On April 20, 2022, the hearing on this motion was continued to allow Plaintiff to conduct jurisdictional discovery. However, as Plaintiffs have not filed any new papers to show they can defeat this motion, the Court finds that it lacks jurisdiction over Specially Appearing Defendant as he has not been properly served.
Conclusion
Accordingly, the motion to quash service of summons and complaint is GRANTED.
Specially Appearing Defendant is ordered to give notice.