Judge Steven A. Ellis, Case Number: 21STCV36626, Date: 2023-09-01 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV36626, Date: 2023-09-01 Tentative Ruling

Case Number: 21STCV36626 Hearing Date: September 1, 2023 Dept: 29

TENTATIVE

The Motion to quash is GRANTED as to Defendant Marcelo Denardo.

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 . . . .” (CCP § 418.10, subd. (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 pp. 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

On July 25, 2022, Plaintiff filed proof of service for Defendant Marcello Denardo (“Defendant”), showing substitute service on July 20, 2022, by delivering the summons and complaint to an adult (John Doe) at 8233 Kirkwood Drive in Los Angeles, and mailing the documents to Defendant at that address the next day. A declaration of diligence is also attached to the proof of service.

Defendants move to quash service of summons on various grounds. Many of Defendant’s arguments plainly have no merit (such as that a statement of damages was required or that the service was untimely). But Defendant also argues that he did not live at the address in question at the time of service.

Upon the filing of a motion to quash, the burden is placed on Plaintiff to present facts to show that there was effective service. Plaintiff meets that burden in part, but only in part.

Plaintiff shows that service was made by (a) personal delivery to a John Doe at the Kirkwood Drive address and then (b) a follow up mailing addressed to Defendant at the same address. Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to . . . the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].)

But what Plaintiff has not shown with any evidence is that Defendant resided at the Kirkwood Drive address at or about the time of service. That is required. For substitute service to be effective, the service must be made at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address.” (CCP § 415.20(b).)

Absent evidence in the record that the Kirkwood Drive address was (for example) Defendant’s place of dwelling or his “usual place of abode,” Plaintiff has not met the burden of showing that service was proper. Substitute service is not effective when made at an address that has not been shown to have the required connection to the person to be served.

Conclusion

Accordingly, the Motion to quash service is GRANTED as to Defendant Marcelo Denardo.

Moving party (specially appearing) is ordered to give notice. The giving of such notice in connection with this motion to comply with an order of the Court will not, in itself, constitute a general appearance.