Judge: Theresa M. Traber, Case: 23STCV30362, Date: 2024-01-25 Tentative Ruling

Case Number: 23STCV30362    Hearing Date: April 11, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 11, 2024                        TRIAL DATE: NOT SET

CASE:                         Harris Shukran v. County of Los Angeles, et al.

CASE NO.:                 23STCV30362           

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

MOVING PARTY:               Specially Appearing Defendant Kimball, Tirey, & St. John LLP

RESPONDING PARTY(S): No response on eCourt as of 4/8/24

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a civil rights action that was filed on December 13, 2023. Plaintiff alleges that Defendants are attempting to evict him from his rental unit under color of a judgment in an unlawful detainer action which Plaintiff contends is invalid.

            Specially Appearing Defendant Kimball, Tirey, & St. John LLP moves to quash service of the summons and complaint.

TENTATIVE RULING:

            Defendant Kimball, Tirey, & St. John, LLP’s Motion to Quash Service of Summons is GRANTED.

DISCUSSION:

            Specially Appearing Defendant Kimball, Tirey, & St. John LLP moves to quash service of the summons and complaint.

Special Appearance 

No motion under Code of Civil Procedure 418.10 “shall be deemed a general appearance by the defendant.” (Code Civ. Proc. § 418.10(d).) Here, Specially Appearing Defendant (“Defendant”) brought this motion under section 418.10. Thus, filing this motion does not constitute a general appearance.  

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 which is challenged states that Defendant was served by personal service on December 22, 2023. (Proof of Service filed December 28, 2023.) A party has 30 days to answer or demur to a complaint after service is received. (Code Civ. Proc. § 471.5.) The time to respond to the Summons and Complaint therefore expired on January 22, 2024. (See Code Civ. Proc. § 12.) This motion was served and filed on that date. (Motion p. 6; Proof of Service.) The motion is therefore timely.

Legal Standard

“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.) 

Request for Judicial Notice

            Defendant requests that the Court take judicial notice of the filings in this case. This request is not strictly necessary but is nonetheless GRANTED pursuant to Evidence Code section 452(d) (court records).

Analysis

            Defendant moves to quash service of the summons and complaint on the grounds that Plaintiff did not properly effect service of process on Defendant as a partnership.

            Code of Civil Procedure section 416.40 governs service of process on a partnership. This section states, in relevant part, that a summons may be served on a limited partnership by delivering a copy of the summons and complaint “to the person designated as agent for service of process in a statement filed with the Secretary of State or to a general partner or the general manager of the partnership.” (Code Civ. Proc. § 416.40(a).)

            Defendant contends that service of the summons and complaint was defective because Plaintiff did not serve Defendant’s agent for service of process, nor did he serve a general partner or general manager of Defendant. As Defendant argues, the Proof of Service on this Defendant claims that Notice was completed on behalf of Defendant as a corporation, not a partnership, (POS ¶ 6d); was not served by a registered process server (¶7) and does not identify the person to whom the papers were purportedly presented. (See ¶ 3b.) Defendant also offers sworn testimony from its agent for service of process that no papers were presented to him on behalf of Plaintiff. (Declaration of Patrick O’Laughlin ISO Mot. ¶ 2.)

            Plaintiff has not responded to this motion. As Plaintiff bears the burden of proof that service was properly made, Plaintiff’s lack of response is fatal. Defendant has therefore shown its entitlement to an order quashing service of the summons and complaint.

CONCLUSION:

            Accordingly, Defendant Kimball, Tirey, & St. John, LLP’s Motion to Quash Service of Summons is GRANTED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  April 11, 2024                                    ___________________________________

                                                                                    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.