ROBERT TERRY VS MACARTHUR D. JOHNSON

Tentative Rulings

Case Number: 20STLC08419    Hearing Date: March 22, 2021    Dept: 25

HEARING DATE:   Mon., March 22, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME:  Terry v. Johnson COMPL. FILED: 10-05-20

CASE NUMBER: 20STLC08419 DISC. C/O: 03-05-22

NOTICE:   OK MOTION C/O: 03-20-22

PROCEEDINGS:     MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Specially Appearing Defendant Macarthur D. Johnson

RESP. PARTY: Plaintiff Robert Terry, in pro per

MOTION TO QUASH SERVICE OF SUMMONS

(CCP § 418.10)

TENTATIVE RULING:

Specially Appearing Defendant Macarthur D. Johnson’s Motion to Quash Service of Summons is GRANTED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 9, 2021 [   ] Late [   ] None

REPLY: Filed on March 15, 2021 [   ] Late [   ] None

ANALYSIS:

1. Background

On October 5, 2020, Plaintiff Robert Terry (“Plaintiff”) filed an action, in pro per, for breach of written contract against Defendant Macarthur D. Johnson (“Defendant”). Plaintiff filed a proof of service for the Summons and Complaint on November 17, 2020.

On November 30, 2020, Defendant filed the instant Motion to Quash Service of Summons (the “Motion”). Plaintiff filed an Opposition on March 9 and Defendant filed a Reply on March 15.

1. Legal Standard

“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), emphasis added.)  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20, subd. (a)(3).)

 (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service.  (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].)

III. Evidentiary Objections

Defendant’s evidentiary objections are OVERRULED as to Nos. 1-3 and SUSTAINED as to 4-11.

IV. Discussion

Plaintiff filed a proof of service purporting to show Defendant was substitute served by Christine Katsouros (“Katsouros”) at 19811 Lantern Village Ln., Katy, TX 77450 (the “Lantern Village Address”) by leaving copies of the Summons and Complaint with Defendant’s mother, Fran Johnson on October 21, 2020. (11/17/20 Proof of Service.) 

Defendant provides his declaration stating that his mother lives at the Lantern Village Address, but he does not. (Mot., Macarthur Decl., ¶¶ 2-4.) Because he was not properly substitute served, Defendant argues, service must be quashed. (Id., p. 3:3-17.)

“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 defendants. [Citations.] Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) (Italics added.) If the summons and complaint cannot be personally delivered with reasonable diligence, then a copy may be served at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, 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…who shall be informed of the contents thereof and by thereafter mailing a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served…” (Code Civ. Proc., § 415.20, subd. (b).)

The proof of service filed by Plaintiff on November 17, 2020 does not demonstrate the requirements for substitute service were met. As Defendant points out, the proof of service does not contain a declaration of due diligence demonstrating the process server made any attempt prior to substitute-serving Defendant on October 21. (Mot., p. 3:7-17; 11/17/20 Proof of Service.) It also does not include a declaration of mailing demonstrating that the Summons and Complaint were mailed to the Lantern Village Address. (Id.)

Plaintiff argues the proof of service is entitled to a presumption of validity because service was effectuated by Katsouros, who is a registered Texas process server. (Oppo., pp. 2:18-3:21.) However, nothing on the proof of service indicates that Katsouros is a registered process server. (11/17/20 Proof of Service.) Nor has Plaintiff included a declaration from Katsouros attesting to this.

Plaintiff also argues the Motion should be denied because Defendant had actual notice the Summons and Complaint were served. (Oppo., p. 3:22-28.) However, “notice does not substitute for proper service [and] [u]ntil statutory requirements are satisfied, the court lacks jurisdiction over a defendant. [Citations.]” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808-09.)

Lastly, Plaintiff attaches printouts of what Plaintiff argues show Defendant’s residence on google earth and several Instagram pictures “showing Defendant at the house with his daughter, who reside with him and his mother at the house where Defendant was served.” (Oppo., p. 2:2-11, Terry Decl., ¶¶ 5-7, Exhs. C-E.) However, the attached exhibits do not demonstrate the property in the pictures is the Lantern Village Address nor do they establish that the Lantern Village Address is Defendant’s residence.

As noted above, it “[w]hen a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Plaintiff has not carried his burden here.

1. Conclusion & Order

For the foregoing reasons, Specially Appearing Defendant Macarthur D. Johnson’s Motion to Quash Service of Summons is GRANTED.

Moving party is ordered to give notice.