Judge: Stephen Morgan, Case: 21AVCV00825, Date: 2023-10-17 Tentative Ruling
Department A14 Tentative Rulings
If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.
If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.
Case Number: 21AVCV00825 Hearing Date: October 17, 2023 Dept: A14
Background
This is a motor vehicle –
personal injury action. Plaintiff Hector Vargas (“Plaintiff”) alleges that on
or about October 02, 2021 at approximately 9:00 pm, Plaintiff proceeded through
the intersection of 35th and Ave R East in Palmdale, CA when Defendant Troy
Carver (“Defendant”) drove through a red light and struck Plaintiff’s vehicle,
causing injuries.
On October 14, 2021, Plaintiff
filed his Complaint alleging three causes of action for: (1) Negligence, (2)
Motor Vehicle Negligence, and 93) Negligence Per Se Cal. Veh. Code § 21453(a).
On August 17, 2023, Plaintiff
amended the fictitious name of Doe 1 to Michelle Fuller.
On August 25, 2023, Defendant
filed this Motion to Quash Service of Summons and Complaint.
On October 02, 2023, Plaintiff
filed his Opposition.
On October 10, 2023, Defendant
filed his Reply.
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Legal Standard
Standard to Quash Service – Cal. Code Civ. Proc. § 418.10 provides:
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,
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.
(2) To stay or dismiss the action on the
ground of inconvenient forum.
(3) To dismiss the action pursuant to the
applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title
8.
“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; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211
[“. . .where a defendant properly moves to quash service of summons the burden
is on the plaintiff to prove facts requisite to the effective service.”].)
Chapter 1.5 provides the Court with the discretionary ability to dismiss
for delay in prosecution pursuant to this article on its own motion or on
motion of the defendant if to do so appears to the court appropriate under the
circumstances of the case. (Cal. Code Civ. Proc. § 583.410.)
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Discussion
Application – Defendant
concedes that Plaintiff served the Summons, Complaint and Statement of Damages
via certified mail, return receipt requested to 454 P.O. Box, Yucca, AZ 86438. Defendant
presents that substituted service under Cal. Code Civ. Proc. § 415.20 provides
for substituted service; however, such service needs to be at the usual mailing
address, not a United States Postal Service post office box (“PO box”), and it
must be in the presence of a competent member of the household or a person
apparently in charge of his or her office, place of business, or usual mailing
address other than a United States Postal Service post office box, at least 18
years of age, who shall be informed of the contents thereto, and thereafter
mailing a copy 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. Thus,
Defendant argues, service was never effectuated and the Court has not acquired
jurisdiction over him.
Plaintiff presents that there was
an attempt at service on the California address that was provided by Defendant
at the scene of the collision and used in the collision report on Stoddard Wells Road, and the attempt revealed
that Defendant did not live at that address. (Decl. Angelo F. Campano ¶¶ 2-3,
Exhs. A [collision report with address] and B [non-service report].) Only after
attempting personal service and learning that Defendant did not live at the
address given at the scene of the collision did Plaintiff attempt substituted
service. A search of Defendant revealed the PO box address at issue. (Id.
at ¶¶ 4-5.) Plaintiff argues that (1) service on an out of state PO box address
is allowed under Cal. Code Civ. Proc. § 415.40, (2) a valid proof of service
gives rise to a rebuttable presumption of valid service under Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426; (3) the certified
mail was signed for by the recipient of the post office box; and (4) Defendant
does not deny that he has the PO box address and/or that he has no idea who
signed the green receipt.
Defendant argues in his Reply
that Cal. Code Civ. Proc. § 415.40 does not apply where a defendant is a known
resident of California and Defendant is a resident of California. Defendant
contends that Plaintiff new his address as he obtained a DMV driver’s search
showing an address located on Navajo Road in Apple Valley, CA 92308. The Court
takes judicial notice of its records pursuant to Cal. Evid. Code § 452(d).) Defendant
further argues that, instead of using this address, Plaintiff served Defendant
at an invalid PO box as the individual signing the certified mail receipt did
not have any capacity or authority as an agent for Defendant. Defendant
presents that Plaintiff’s own argument supports this Motion to Quash as it
shows that Plaintiff did not comply with Cal. Code Civ. Proc. § 415.40.
Cal. Code Civ. Proc. § 415.20,
which discusses substituted service provides:
(a) In lieu of
personal delivery of a copy of the summons and complaint to the person to be
served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a
summons may be served by leaving a copy of the summons and complaint during
usual office hours in his or her office or, if no physical address is known, at
his or her usual mailing address, other than a United States Postal Service
post office box, with the person who is apparently in charge thereof, and by
thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of
the summons and complaint at a mailing address, it shall be left with a person
at least 18 years of age, who shall be informed of the contents thereof.
Service of a summons in this manner is deemed complete on the 10th day after
the mailing.
(b) If a copy of the
summons and complaint cannot with reasonable diligence be personally delivered
to the person to be served, as specified in Section 416.60, 416.70, 416.80, or
416.90, 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 or a person
apparently in charge of his or her office, place of business, or usual mailing
address other than a United States Postal Service post office box, 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. Service of a summons in this manner is deemed complete on
the 10th day after the mailing.
(c) Notwithstanding
subdivision (b), if the only address reasonably known for the person to be
served is a private mailbox obtained through a commercial mail receiving
agency, service of process may be effected on the first delivery attempt by
leaving a copy of the summons and complaint with the commercial mail receiving
agency in the manner described in subdivision (d) of Section 17538.5 of the
Business and Professions Code.
Cal. Code Civ. Proc. § 415.40,
discussing out of state service provides:
A summons may be
served on a person outside this state in any manner provided by this article or
by sending a copy of the summons and of the complaint to the person to be
served by first-class mail, postage prepaid, requiring a return receipt.
Service of a summons by this form of mail is deemed complete on the 10th day
after such mailing.
The Court emphasizes that Cal.
Code Civ. Proc. § 415.40 allows service on a person outside of this state (1) in
any manner provided by this article or (2) by sending a copy of the summons and
of the complaint to the person to be served by first-class mail, postage
prepaid, requiring a return receipt. Accordingly, the Court must take into
consideration all allowed methods under Cal. Code Civ. Proc. §§ 415.10-416.3,
which discuss manner of service of summons.
Cal. Code Civ. Proc. § 415.30
allows service by mail in a similar fashion to the second alternative allowed
in Cal. Code Civ. Proc. § 415.40:
A summons may be
served by mail as provided in this section. A copy of the summons and of the
complaint shall be mailed (by first-class mail or airmail, postage prepaid) to
the person to be served, together with two copies of the notice and
acknowledgment provided for in subdivision (b) and a return envelope, postage
prepaid, addressed to the sender.
(Cal. Code Civ. Proc. §
415.30(a).)
Though there are differences
between the two Cal. Code Civ. Proc. §§ 415.30 and 415.40, the Court finds case
law on Cal. Code Civ. Proc. § 415.30 helpful for the issue of whether PO box
service is allowed by code:
The Judicial Council
comment following Code of Civil Procedure section 415.50 states service by mail
is not required "where a defendant's whereabouts and his dwelling house or
usual place of abode, etc. cannot be ascertained with reasonable diligence."
(Judicial Council of Cal. com., Deering's Ann. Code Civ. Proc. (1991 ed.) §
415.50, p. 676.) However, we do not read this comment to exclude service by
mail in the instant case. Although respondent could not ascertain appellant's
"dwelling house or usual place of abode," we believe the post office
box falls into the "etc." category. (See Donel Inc. v. Badalian
(1978) 87 Cal. App. 3d 327 [150 Cal. Rptr. 855] [where mailing of summons is
reasonably feasible, any method of service less likely to provide actual notice
is insufficient]; Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 315-318 [94 L. Ed. 865,
873-876, 70 S. Ct. 652] [for the same proposition]; see also U.S. v.
$84,740.00 U.S. Currency (9th Cir. 1990) 900 F.2d 1402 [in addition to
service by publication, the government served defendants with a forfeiture
complaint by sending two certified letters to defendants' post office box].)
Our finding a post
office box is a sufficient address for compliance with Code of Civil Procedure
section 415.30 also is supported by case law interpreting the statutory
predecessor to Code of Civil Procedure section 415.50. Former Code of Civil
Procedure section 413 required "a copy of the summons and complaint to be
forthwith deposited in the post office, directed to the person to be served, at
his place of residence. . . ." (Italics added.) At least two courts
defined the term "residence" not as the defendant's abode, but rather
as "the address at which letters would be most likely to reach the
defendant." ( Sousa v. Freitas (1970) 10 Cal. App. 3d 660, 663 [89
Cal. Rptr. 485]; cf. San Diego Sav. Bank v. Goodsell (1902) 137 Cal.
420, 427 [70 P. 299].)
This interpretation of "residence"
is relevant to our holding a post office box is a sufficient address for
service under Code of Civil Procedure 415.30 because it demonstrates how
statutory language and judicial comments should be read to achieve the
statute's fundamental objective of serving notice on the defendant. Whenever
possible, a statute should be interpreted as broadly as necessary to effectuate
the statute's purpose. (See generally, S.E.C. v. Rana Research, Inc.
(9th Cir. 1993) 8 F.3d 1358, 1362 [interpreting language in Securities and
Exchange Commision rule 10b-5 as broadly and as flexibly as necessary to
accomplish the statute's purpose]; cf. Western Oil & Gas Assn. v.
Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal. 3d 408, 425
[261 Cal. Rptr. 384, 777 P.2d 157] [where a statute has two possible
interpretations, courts should apply the more reasonable of the two].)
(Transamerica Title Ins. Co.
v. Hendrix (1995) 34 Cal. App. 4th 740, 745-46.)
Thus, it appears when taking case
law, statute, and the context of the mailed service into consideration, that
Plaintiff has effected service in a way that is authorized by California law.
That is, Plaintiff has sent a copy of the summons and of the complaint to Defendant
by first-class mail, postage prepaid, requiring a return receipt on an address
allowed by statute (as interpreted by case law), the PO box.
It is unclear why Defendant made
the argument as to the Navajo Road address in the Reply brief only. The moving
papers only mention the Navajo Road address in the declarations, but no
argument was presented alongside this information. (See Decl. Darice M. Collins
¶ 6; Decl. Troy Carver ¶¶ 6 and 10.) It is well established that new arguments
presented in reply briefs will not be considered. (See In re Marriage of
Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477-78 [“ ‘Obvious reasons
of fairness militate against consideration of an issue raised initially in the
reply brief of an appellant. [Citations.]”]; Varjabedian v. City of Madera
(1977) 20 Cal.3d 285, 295, fn. 11 [. . .“Obvious reasons of fairness militate
against consideration of an issue raised initially in the reply brief of an
appellant.”]; People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [“
‘[T]he rule is that points raised in the reply brief for the first time will
not be considered, unless good reason is shown for failure to present them
before. [Citations.]’ [Citation.]”].) However, it is clear that the interests
of justice require consideration of this argument as (1) Plaintiff disclosed
the Navajo Road address in his Application for Publication, which was denied;
and (2) Plaintiff has only shown service upon the Stoddard Wells Road address. (See
Application for Publication ¶ 5, Exh. A; and Decl. Angelo F. Campano ¶ 2, Exh.
A.) Cal. Code Civ. Proc. § 415.40 provides that it is for service on a person
outside of California. As Defendant resides in California, use of Cal. Code Civ.
§ 415.40 is improper.
Accordingly, the Motion is
GRANTED.
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Conclusion
Specially appearing defendant
Troy Carver’s Motion to Quash Service of Summons and Complaint is GRANTED.