Judge: Steven A. Ellis, Case: 22STCV15141, Date: 2024-05-03 Tentative Ruling

Case Number: 22STCV15141    Hearing Date: May 3, 2024    Dept: 29

Motion to Quash filed by Specially Appearing Defendant Sherman Pointe, Inc.

Tentative

The motion is granted.

BACKGROUND 

On May 6, 2022, Francisco Larranaga (“Plaintiff”) filed a complaint against Sherman Pointe, Inc. (“Sherman”), 6851 Sepulveda Blvd., Inc., and Does 1 through 100 for general negligence and premises liability arising from a trip and fall occurring on May 7, 2020.

On September 20, 2023, Plaintiff filed a proof of service on Sherman.  According to the proof of service, Sherman’s registered agent (Rijesh Desai) was served by registered mail, sent to an address on Riverside Drive in Los Angeles.

On October 17, 2023, Sherman filed this motion to quash service of summons. No opposition has been filed.

LEGAL STANDARD 

C.C.P. §415.10 provides the requirements of personal service of summons and the complaint as follows: “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.  The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.”

“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.) Although the filing of a proof of service by a registered process server creates a rebuttable presumption that service was proper (see Evid. Code § 647), that presumption may be impeached by contrary evidence submitted by a defendant. (See, e.g., Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941 n.6.) 

C.C.P. § 418.10(a)(1) provides that, “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… To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”

If service of summons is not properly and validly effectuated by one or more of the approved methods, California courts lack personal jurisdiction over the defendants, and any judicial actions taken without such service violates principles of fundamental due process and is therefore void. (Cnty. of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1231.)

DISCUSSION 

Sherman contends service was improper as service was not made properly on its agent for service of process, Ritesh Desai.  While the summons and complaint were sent by certified mail, no copy was left at the location to be served. (Motion, 3:20-23.)

“A summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office … 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.” (C.C.P. § 415.20(a).)

Sherman attached the Declaration of Ritesh Desai, who states he is the agent for service of process, and he has not been personally served with the summons and complaint. (Desai Decl., ¶¶ 2, 3.) The proof of service only has the boxes checked for mailing the summons and complaint, and no box selected for leaving a copy at a business, home or physical address unknown. (Exh. A.)

”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.) Although the filing of a proof of service by a registered process server creates a rebuttable presumption that service was proper (see Evid. Code § 647), that presumption may be impeached by contrary evidence submitted by a defendant. (See, e.g., Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941 n.6.)  Here, Defendant has submitted contrary evidence, and Plaintiff has not filed an opposition.

The Court finds that Sherman has shown that there was no proper service of the summons and complaint.  As such, the motion to quash is GRANTED.

CONCLUSION AND ORDER 

The Court GRANTS Specially Appearing Defendants’ motion to quash service of the summons.

The Court requests that the Judicial Assistant give notice.