Judge: Theresa M. Traber, Case: 22STCV40032, Date: 2023-08-29 Tentative Ruling

Case Number: 22STCV40032    Hearing Date: August 29, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 29, 2023                     TRIAL DATE: NOT SET

CASE:                         Eva P. Padilla De Gutierrez v. Alejandro Cardenas et al.

CASE NO.:                 22STCV40032           

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:               Specially Appearing Defendant Ruben Montes Trejo

RESPONDING PARTY(S): Plaintiff Eva P. Padilla De Gutierrez.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for quiet title and fraud that was filed on December 23, 2022. Plaintiff alleges that Defendants fraudulently induced her to transfer title to her home to Defendants.

Specially Appearing Defendant Ruben Montes Trejo moves to quash service of the summons and complaint.

TENTATIVE RULING:

Defendant’s Motion to Quash Service of Summons is GRANTED.

DISCUSSION:

Specially Appearing Defendant Ruben Montes Trejo moves to quash service of the summons and complaint.

Timeliness 

A motion to quash must be made as Defendant’s initial appearance in the action, on or before the last day to plead “or within any further time that the court may for good cause allow.” (Code Civ. Proc.  § 418.10(a).) Filing the motion also extends the time within Defendant may answer or demur. (Code Civ. Proc.  § 418.10(b).) 

Here, the proof of service states that substituted service was made on June 10, 2023, and the document was mailed on June 12, 2023. (June 21, 2023 Proof of Service.) A party has 30 days to answer or demur to a complaint after service is completed. (Code Civ. Proc. § 471.5.) Substituted service is deemed complete on the 10th day after mailing. (Code Civ. Proc. § 415.20(b).) Thus, 40 days after completion of mailing would be Saturday, July 22, 2023. The time to respond to the Summons and Complaint therefore expired on July 24, 2023. (See Code Civ. Proc. § 12.) This motion was served and filed on that date. (Proof of Service.) The motion is therefore timely.

Analysis

            Specially Appearing Defendant moves to quash service of the summons and complaint on the basis that Plaintiff did not comply with the standards for substituted service.

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.”  (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].) Evidence of the facts giving rise to personal jurisdiction or their absence may be in the form of declarations. (Arensen v. Raymond Lee Organization, Inc. (1973) 31 Cal.App.3d 991, 995.) The Court should exclude evidence that would be inadmissible at trial. (See, e.g., Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43-44 [Court of Appeal excluded inadmissible hearsay evidence offered in support of affirmation of trial court’s denial of motion to quash, and subsequently reversed the trial court’s denial].)

“[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.” (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

Code of Civil Procedure section 415.20 governs substituted service of the Summons and Complaint. This statute provides, as relevant here:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served [. . .], 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, [. . .], 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 [. . .], 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 [. . .], 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.

(Code Civ. Proc. § 415.20 (a)-(b) [emphasis added].) Here, Specially Appearing Defendant contends that Plaintiff did not comply with these requirements because, contrary to the Proof of Service filed with the Court, Plaintiff’s process server did not leave the Summons and Complaint with anyone at Specially Appearing Defendant’s residence. The Proof of Service states that after four attempts were made to serve Defendant personally, the documents were left with an unnamed female co-occupant on June 10, 2023, and then mailed on June 12, 2023. (June 21, 2023 Proof of Service.)

Specially Appearing Defendant claims that Plaintiff’s process server merely left the documents on the front porch of his home. In support of this contention, Specially Appearing Defendant has provided five images captured by a camera on the property from a recording lasting 2 minutes and 45 seconds. (Declaration of Ruben Trejo ISO Mot. Exh. A.) These images show an individual ringing the doorbell at 3 seconds, standing in front of a closed door at 1 minute and 50 seconds, leaving papers on the welcome mat at 2 minutes and 28 seconds, turning to leave at 2 minutes and 30 seconds, and then walking away at 2 minutes and 36 seconds. (Id.) The pictures do not show the individual speaking with anyone else, nor was the door ever opened. (Id.) Specially Appearing Defendant has provided a sworn declaration, in which he states that he never received a copy of the summons and complaint in the mail. (Trejo Decl. ¶ 7.)

In opposition, Plaintiff claims that substituted service was properly made. Plaintiff offers a declaration from her process server, Hector Flores, who claims that he rang the doorbell at the property on June 10, 2023, and that the front door “consisted of a door and a screen door.” (Declaration of Hector Flores ISO Opp. ¶ 4.) Mr. Flores claims that a woman opened the main door, but not the screen door, and that he asked this woman if he could speak to Defendant and stated “I have legal documents for him.” (¶ 6.) Mr. Flores was then reportedly told “he [Defendant] does not live here.” (Id.) This woman then reportedly closed the door, and Mr. Flores left the documents by the door after announcing “You have been served, I am leaving the documents by the door.” (¶ 7.) Plaintiff also provides a declaration from Margarita Abeshyan, an employee of Janney and Janney Legal Support Services who purportedly served Specially Appearing Defendant by mail. Ms. Abeshyan states that she does not specifically recall serving Specially Appearing Defendant, but that she has a regular practice of mailing documents and then signing a proof of service generated by her office. (Declaration of Margarita Abeshyan ISO Opp. ¶¶ 3-4.)

The Court does not find that these declarations are sufficient to show compliance with the statutory requirements for substituted service. Contrary to Mr. Flores’s declaration and Plaintiff’s contentions in opposition, the photographs provided by Defendant show a solid door at the front of the property, not a screen door. (Trejo Decl. Exh. A.) This leads the Court to question the credibility of Mr. Flores’s statements altogether, since it is not apparent how someone could have opened the main door and left closed a screen door that does not appear to exist. Further, Mr. Flores states that he only said he had “legal documents” for Specially Appearing Defendant, not that he had a Summons and Complaint in his possession, and thus did not state that he informed the person he spoke to of the contents of the papers in his possession, as required by section 415.20(b). (Flores Decl. ¶ 6.) What is more, Ms. Abeshyan admits in her declaration that she cannot recall mailing the papers in this action, and provides no indication of when, specifically, the proof of service is usually generated beyond a vague statement that it is done “after [she] does the mailing.” (Abeshyan Decl. ¶¶ 3-4.) The Court is also not persuaded by Plaintiff’s attacks on Defendant’s evidence. Specially Appearing Defendant’s decision to provide five screenshots of a recording, rather than the entire recording does not render those screenshots incompetent evidence, and Plaintiff’s conclusions regarding the content of those screenshots are not shared by the Court.

Specially Appearing Defendant has demonstrated to the Court’s satisfaction that substituted service of process was not properly made.

CONCLUSION:

            Accordingly, Defendant’s Motion to Quash Service of Summons is GRANTED.

            Moving Party to give notice.

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IT IS SO ORDERED.

Dated:  August 29, 2023                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.