Judge: Steven A. Ellis, Case: 22STCV34326, Date: 2024-01-23 Tentative Ruling

Case Number: 22STCV34326    Hearing Date: January 23, 2024    Dept: 29

Motion to Quash filed by Defendant Kevin Tatanian.

Tentative

The motion is granted.

BACKGROUND 

On October 26, 2022, Plaintiff Ahdrie Wright (Plaintiff) filed a complaint against Kevin Tatanian (“Defendant”) for five causes of action: (1) Harassment, (2) Assault, (3) Battery, (4) Intentional and Negligent Infliction of Emotional Distress, and (5) Negligence.  

On March 30, 2023, Defendant, specially appearing, filed his 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 

Defendant contends that he was not served with the Summons and Complaint in this action, and that substituted service was attempted when papers were handed to his mother on March 15, 2023. (Kevin Tatanian Decl., ¶ 3, 4.) Defendant contends that personal service must be attempted three times before substituted service can occur, and that there have been no attempts of personal service on him. (Id., ¶ 5, 6.)

Plaintiff has not filed a proof of service in this matter. Plaintiff has not opposed the motion or presented any evidence of proper service.

Accordingly, based on the evidence in the record, the Court GRANTS Defendant’s motion to quash service the purported March 15, 2023 substituted service in this matter.

CONCLUSION AND ORDER 

The Court GRANTS Defendant’s motion to quash service.

Defendant is to provide notice.