Judge: William A. Crowfoot, Case: 20STCV29522, Date: 2022-08-05 Tentative Ruling

Case Number: 20STCV29522    Hearing Date: August 5, 2022    Dept: 27






















      CASE NO.: 20STCV29522




Dept. 27

1:30 p.m.

August 5, 2022


On August 4, 2020, plaintiffs Anastasia Paras and Susan Bartha (collectively, “Plaintiffs”) filed this action against defendants Benjamin Hasbun Dansky (“Defendant”) and Mars Lang (“Lang”) arising from an August 18, 2018, motor vehicle collision.  Lang filed an answer on September 2, 2021, and was dismissed from this action without prejudice on November 23, 2021. 

On February 18, 2022, Plaintiffs filed a proof of service of summons reflecting that Defendant was served by substituted service on January 28, 2022, at 156 Calle De La Ventana in Carmel Valley, California 93924 (the “Address”).  The proof of service, executed three days earlier on January 25, 2022 by a registered process server named Rigoberto Pulido, reflects that the summons, complaint, and related papers were left with Lang, who is described as a co-occupant of Defendant’s home. 

On March 11, 2022, Defendant filed a motion to quash service of summons.  On March 29, 2022, Plaintiffs filed two amended proofs of service which are dated January 31, 2022.  Defendant made a showing that he does not live at the Address and instead lived in New Zealand.  Plaintiffs only offered their counsel’s declaration that there were “public records indicating that Defendant had resided [at the Address] since May 23, 2019.  Accordingly, on April 15, 2022, the Court granted Defendant’s motion to quash service of summons.

On May 20, 2022, Plaintiffs filed another proof of service showing that Defendant was served by substituted service at the Address.  The summons and complaint were left on May 1, 2022, with his step mother, Lang (identified as “Jane Doe” on the proof of service”).  The proof of service indicates that the Address is not a home, but “the usual mailing address” of Defendant.  The declaration of diligence states that Jane Doe “admitted that [Defendant] uses this address to receive bills.” 

On May 31, 2022, Defendant filed the instant motion to quash service of summons, maintaining that he lives in New Zealand and not at the Address.

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served.  (Code of Civ. Proc., § 415.10.)  If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected 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 address . . . in the presence of . . . a person apparently in charge . . . and by thereafter mailing a copy of the summons and complaint by first-class mail . . . to the person to be served at the place where a copy of the summons and complaint were left.”  (Code of Civ. Proc., § 415.20, subd. (b).) 

When a defendant moves to quash service of summons, 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.)  Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper, although the proof of service of summons may be impeached by evidence that contradicts it.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to . . . the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”]; City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.) 

Defendant again argues that he was not properly served because he does not live at 156 Calle De La Ventana and it is not his mailing address.  Defendant states that the United State Postal Service’s records are wrong.  He also submits a declaration from Lang, who declares that Defendant, her stepson, previously lived with her in 2017 in a different house at 3271 Sycamore Pl., Carmel, California (the “Sycamore Address”).  (Motion, Lang Decl., ¶ 3.)  He left for college in August 2017 and never lived with Lang again, but he received various kinds of mail at the Sycamore Address, like many college students.  In December 2018, Defendant moved to New Zealand.  (Id., ¶ 4.)  In May 2019, Lang moved to the Address; at that time, all the mail she received at the Sycamore Address was forwarded to the Address, but she does not recall how that was done.  (Id., ¶ 5.)  She states that Defendant never lived at the Address.  Instead, he is residing with his mother at 58 Falconer Rd., Pohara, Tasman 7183 in New Zealand.  (Id., ¶ 6.)  She disputes that she ever told a process server that Defendant receives mail or bills at the Address and declares that, in fact, the process server told her that “she has information that [Defendant] uses [the Address] for mailing.”  (Lang Decl., ¶ 8.)  She states that while she has received some bills for Defendant in the past when they were forwarded from his previous address, she does not believe that she has received any bills for him since 2019. 

In opposition, Plaintiffs rely on the USPS’s response to their counsel’s Request For Change of Address Or Boxholder Information Needed For Service of Legal Process, which confirmed the Address as “Good as Addressed.”  (Opp., Ex. 2.)  Plaintiffs also state that Defendant is registered to vote at the Address and would likely receive a sample ballot and absentee ballot in the mail.  (Opp., Ex. 6.)  Given that Lang has not received any bills for Defendant since 2019, the Court finds that the mailing of a sample ballot and absentee ballot is insufficient to show that the Address is Defendant’s “usual mailing address”, and therefore a place where he can be served by substituted service. 

In light of the foregoing, Defendant’s motion to quash is GRANTED. 

Moving party to give notice.


Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.