Judge: Serena R. Murillo, Case: 21STCV45426, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV45426    Hearing Date: September 20, 2022    Dept: 29

Deborah Elkins v. The Estate of Mark Alexander Farr

Tuesday, September 20, 2022 

Motion to Quash Service of Summons and Complaint filed by Specially Appearing Defendant Kaley Farr, Successor Trustee of the K.M.L. Trust

TENTATIVE

Specially Appearing Defendant Michael Acosta’s 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 the Proof of Service erroneously alleges that a “John Doe,” a “co-occupant and competent member of the household was served at 16421 Rayen Street North Hills, CA 91343.” (Farr Decl., ¶ 5; Exh A.)

Plaintiffs filed a proof of service indicating that on February 7, 2022, Defendant was served with a copy of the Summons and Complaint by substituted service at her residence, 16421 Rayen Street, North Hills, CA 91343.  A registered process server, Francisco J. Navarro, provided a copy of the Summons and Complaint with co-occupant and competent member of the household, “John Doe.”

Defendant contends Plaintiff’s service is improper pursuant to Code of Civil Procedure section 415.20, subdivision (b), which 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 the individual purportedly “served” is not a co-occupant, and is not a competent member of Defendant’s household. (Id., ¶ 6.) Further, Defendant declares that the individual that the process server spoke to was never handed a copy of the Summons and Complaint. (Id.) The Summons and Complaint were not left with a competent member of Defendant’s household – much less any individual – as they were merely tossed aside on the ground while no person was present. (Id. ¶ 3.)

As such, Defendant has presented sufficient evidence to show that the person served was not a member of her household.

Plaintiffs have not filed an opposition and have thus failed to show that the substituted service was valid. 

Conclusion

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

Moving party is ordered to give notice.