Judge: Virginia Keeny, Case: 24STCV12828, Date: 2025-02-19 Tentative Ruling

Case Number: 24STCV12828    Hearing Date: February 19, 2025    Dept: 45

JEFFREY ALAN ROSS v. DUTTON PROPERTIES III, LLC, et al.

DEFENDANT Jill DUTTON’S MOTION TO quash service of summons for lack of personal jurisdiction based on IMPROPER SERVICE

Date of Hearing:          February 19, 2025                   Trial Date:       None Set

Department:               45                                            Case No.:         24STCV12828

Complaint Filed:            May 21, 2024

Moving Parties:           Defendant Jill Dutton

Responding Party:       None

Notice:                         Proper

BACKGROUND

On May 21, 2024, Plaintiff Jeffery Alan Ross (“Plaintiff”) filed a complaint against Defendants Dutton Properties II, LLC (“Dutton”), Howard Management Group (“Howard”), Jill Dutton, erroneously named as Jill Hutton (“Jill”) and Does 1 through 100. The complaint alleges (1) breach of contract; (2) negligence; (3) negligence per se; (4) breach of implied warranty of habitability; (5) breach of covenant of quiet enjoyment; (6) intentional infliction of emotional distress; (7) violation of Cal. Civ. Code § 1942.5; (8) violation of Cal. Civ. Code § 1942.4; (9) violation of Cal. Civ. Code § 1942.2; and (10) violation of Business and Professions Code § 17200, et seq.

On July 10, 2024, Jill filed the instant Motion to Quash Service of Summons.

On October 10, 2024, Plaintiff filed proof of service of summons and complaint as to Jill.

As of February 11, 2025, no opposition has been filed. 

[Tentative] Ruling

Jill’s Motion to Quash Service of Summons is DENIED as moot.

LEGAL STANDARD

A defendant 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. (Code Civ. Proc. §418.10(a).) Code of Civil Procedure section 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. (Roy v. Sup.Ct. (2005) 127 Cal.App.4th 337, 342.) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581, subd. (h).) 

"A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (Code Civ. Proc., § 410.10.) "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations."' (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend "traditional notions of fair play and substantial justice." (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.) 

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.) The plaintiff must establish the facts of jurisdiction by a preponderance of the evidence. (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.) “When a nonresident defendant challenges personal jurisdiction the burden shifts to the plaintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. [Citation.] This burden must be met by competent evidence in affidavits and authenticated documentary evidence. An unverified complaint may not be considered as an affidavit supplying necessary facts.” (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054-55.)

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.) “[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.)

“The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.” (Cal. Rules of Ct. Rule 3.110 subd. (b).) “The court, on its own motion or on the application of a party, may extend or otherwise modify the times provided in (b)-(d). An application for a court order extending the time to serve a pleading must be filed before the time for service has elapsed. The application must be accompanied by a declaration showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed.” (Cal. Rules of Ct. Rule 3.110 subd. (e).)

ANALYSIS

Defendant Jill moves to quash Plaintiff’s purported service of summons and complaint upon her on the grounds of a lack of personal jurisdiction based on improper service.

Timeliness

“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 for one or more of the following purposes: ¶ To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1).) 

A defendant has 30 days after the service of the summons, or 40 days if service was effectuated by substitute service, to file a responsive pleading. (Code Civ. Proc., § 412.20, subds. (a)(3), (b).)  

Here, Jill filed the instant motion on July 10, 2024, before Plaintiff served her with the summons and complaint on August 21, 2024 or filed proof of service on October 10, 2024. Jill argues that she filed the instant motion to quash any purported service “to make sure that no sneak default is filed.” However, at the time of filing the instant motion, the clock did not yet start on Jill’s responsive pleading as Plaintiff had not yet served her or filed proof of service. Further, at the time of filing of the instant motion, no default was sought or entered against Jill. When the instant motion was filed, there was no service of summons to be quashed. The fact that Plaintiff has since filed proof of service does not cure the mootness of the instant motion. Jill must file a new motion addressing any purported defects in the subsequently filed proof of service.

Accordingly, Jill’s motion is moot.  The court note that the proof of service subsequently filed appears to show valid service.  The proof of services indicates that the summons and complaint was personally served on Jill L. Dutton, in her individual capacity. The proof of service appears to comply with the statutory requirements. Thus, Plaintiff’s filing of a proof of service creates a rebuttable presumption that service was proper as to Jill.

CONCLUSION

Jill’s Motion to Quash Service of Summons is DENIED as moot.

Moving party to give notice.