Judge: Steven A. Ellis, Case: 20STCV22185, Date: 2023-06-30 Tentative Ruling

Case Number: 20STCV22185    Hearing Date: June 30, 2023    Dept: 29

TENTATIVE

Specially Appearing Defendant’s motion to quash service of summons and complaint 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, 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 seeks a court order quashing the service of summons and complaint on grounds that Plaintiff did not properly effectuate service of the summons and complaint.

On October 20, 2022, Plaintiff filed a proof of service indicating that service on Defendant was made by substituted service at 7957 Teak Way, Rancho Cucamonga, CA 91730-2945, and the documents were left with Jane Doe, co-resident. (Proof of Service.) 

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).) 

As an initial matter, the Court finds good cause to allow this motion to be filed even though it has been longer than 30 days since Defendant was purportedly served, because defense counsel was unable to get into contact with Defendant, despite diligent and ongoing efforts,  in order to confirm whether or not he was properly served.

Specially Appearing Defendant submits the declaration of Julia Cruz, who declares under penalty of perjury, that she lives at 7957 Teak Way, Rancho Cucamonga, California. (Cruz Decl., ¶ 2.) No one by the name of Waylon Wuest resides at her address at 7957 Teak Way, Rancho Cucamonga, California. (Id., ¶ 4.) No one by the name of Waylon Wuest resided at her address on the date the unidentified man handed her the unidentified papers. (Id., ¶ 5.)

Plaintiff has not filed an opposition. Therefore, Plaintiff has not met her burden of proving the facts requisite to an effective service.  (Coulston v. Cooper, supra, 245 Cal.App.2d at 868.)

As such, 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. 

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.