Judge: Thomas Falls, Case: 22PSCV00040, Date: 2022-09-28 Tentative Ruling

Case Number: 22PSCV00040    Hearing Date: September 28, 2022    Dept: R

Tentative Ruling

Specially Appearing Defendant Aniceto Diaz, Sr’s Motion to Quash Service of Summons and Complaint is GRANTED.

Background

This case arises from the alleged breach of a verbal agreement. Plaintiff Alfred Concepcion (“Plaintiff”) alleges the following against Specially Appearing Defendant Aniceto Diaz (“Specially Appearing Defendant”): The parties entered into a verbal agreement wherein Plaintiff would pay the monthly mortgage on a home in return for “all the property tax [] paid during [the] stay.” (Complaint p. 4 of 5 of PDF.) Defendant never gave the monthly $500 share and “constantly verbally abused [Plaintiff] to the point that [Specially Appearing Defendant] physically hurt [Plaintiff’s wife].”[1]

On January 14, 2022, Plaintiff filed the instant action against Specially Appearing Defendant for breach of contract.

On January 20, 2022, Plaintiff filed its ‘Proof of Personal Service.’[2]

On March 22, 2022, Specially Appearing Defendant Diaz filed the instant Motion to Quash Service of Summons (“Motion”).

On September 16, 2022, Plaintiff filed a ‘Response to the Motion of Defendant and Lawyer to Quash Service of Summons.’

To date, as of Tuesday, September 27, 2022 at 2:30 p.m., no Reply has been received.

Legal Standard

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4^th 1426.)

Discussion

Specially Appearing Defendant argues that the complaint was never served via any statutory prescribed method of service.

In Opposition, Plaintiff avers that “the statement of Frolian Diaz, son of Ancieto Diaz Sr. is all a lie . . . The server told Froilan to give the paper to his father Ancieto Diaz Sr.” (Opp. p. 1.)[3]

In California, CCP section 415.10 eq seq prescribes four basic methods for service upon an individual defendant. 

1.      Personal Delivery to Defendant 

Service on an individual may be made by personal delivery of a copy of the summons and complaint, which is the preferred method. (Code Civ. Proc., § 415.10.) According to Code of Civil Procedure section 415.10, “[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.” (Id.) 

Here, the court finds that Plaintiff’s opposition and Proof of Service concede the lack of personal service. Specially Appearing Defendant, as the named Defendant in the action, is the “person to be served.” However, Specially Appearing Defendant’s son, Froilan Diaz, was served.

Therefore, Plaintiff did not personally serve Specially Appearing Defendant.

2.      Substitute Service 

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual may be made by leaving a copy of the summons and complaint with a competent person at the individual's business, office, dwelling, usual place of abode or usual mailing address. (Code Civ. Proc., § 415.20, subd. (b).) “An individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the individual defendant.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “‘reasonable diligence.’” (Id, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 4:196, p. 4–30.) 

Here, Plaintiff has not provided an affidavit attesting to the inability to personally serve Specially Appearing Defendant. 

Therefore, as the burden is on Plaintiff to show that reasonable attempts were made to serve Specially Appearing Defendant before resorting to substitute service, Plaintiff fails to comply with substitute service. 

3.      Service by Mail Coupled with Acknowledgment of Receipt

A plaintiff is also authorized to simply mail a defendant a copy of the summons and complaint, with a request to acknowledge receipt thereof. (Code Civ. Proc., § 415.30.)

Here, Specially Appearing Defendant avers that he has not received a copy of the Summons and Complaint in the mail. (Motion p. 5.) 

Therefore, service by mail was not achieved.

4.      Service by Publication

As for the final method of service authorized by the Code of Civil Procedure is by publication of summons in a newspaper of general circulation. Unlike the other methods discussed above, a plaintiff must obtain a court order before attempting service by this method. (Code Civ. Proc., § 415.50.) Furthermore, service by publication is not adequate notice for due process purposes for defendants whose whereabouts are known, and who therefore could be notified by means such as personal service or mail. (Mennonite Bd. of Missions v. Adams (1983) 462 U.S. 791, 795.)

Here, there is no court filing indicating the court has approved of such method. In any event, the court would likely not approve such a request because Plaintiff states that at the time of service, Specially Appearing Defendant was with his son the whole time; therefore, Specially Appearing Defendant’s address is known. (Opp. p. 3 of 4 of PDF [“The truth is that he was with his father the whole time the servers were doing the service . . . I know that Froilan Diaz was with his father because I saw both of them as they were following me . . . I drove away as they started following me and chasing me while taking videos of me.”].)

Therefore, Plaintiff did not comply with service by publication.

All in all, as Plaintiff failed to with any of the forms of service, this Court does not have jurisdiction over Specially Appearing Defendant Aniceto Diaz, Sr.

Conclusion

Specially Appearing Defendant’s Motion to Quash Service of Summons and Complaint is GRANTED.