ANGELO HATZAKIS VS SKYE DONIELLE LAFONTAINE

Tentative Rulings

Case Number: BC678832    Hearing Date: November 18, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO QUASH SERVICE OF SUMMONS

On October 10, 2017, plaintiff Angelo Hatzakis (“Plaintiff”) filed this action against defendant Skye Donielle LaFontaine (“Defendant”) for negligence and negligent entrustment arising from a motor vehicle accident on October 15, 2015. On June 19, 2019, Plaintiff filed a proof of service and declaration of due diligence describing efforts to serve Defendant via substitute service. The declaration states that Plaintiff’s counsel visited the property located at 3800 Amesbury Road and spoke with an individual named Kathy, who represented herself as Defendant’s aunt and confirmed that Defendant and she both lived there. Defendant moves to quash service of summons on the grounds that she did not reside at 3800 Amesbury Road at the time of purported service and that Kathy was not a competent member of the household.

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code 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 Civ. Proc., § 415.20, subd. (b).) Reasonable diligence is typically satisfied where there are “two or three attempts to personally serve a defendant at a proper place” (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392), or there are a “number of honest attempts to learn defendant’s whereabouts or his address by inquiry” and use of public records (Board of Trustees of the Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 337).

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647.) “To be constitutionally sound, the form of substituted service must be ‘reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard . . . in order that the traditional notions of fair play and substantial justice implicit in due process are satisfied.’ [Citation.]” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416.) 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.)

Defendant submits the declaration of her mother, Anita LaFontaine, to show that she did not live at 3800 Amesbury Road at the time of Plaintiff’s counsel’s attempted service. Ms. LaFontaine states that she lives at that address, and Kathy was visiting at the time of Plaintiff’s counsel’s attempted service and did not reside at the address. Defendant presents no evidence of where she actually lived at the time of service.

Plaintiff argues that Defendant resided at 3800 Amesbury Road because her aunt, Kathy, said that she did the two times Plaintiff’s counsel spoke with Kathy. Plaintiff’s counsel also details the significant efforts made to locate Defendant, and attaches several website printouts listing 3800 Amesbury Road as Defendant’s address. Plaintiff states that Defendant’s “listed home address” is an accountant’s office. It is unclear whether “listed home address” means the address on Defendant’s driver’s license. Defendant argues that Kathy’s statement to Plaintiff’s counsel are inadmissible hearsay. But a process server who needs to establish the residence of a person who answers the door will often rely on that person’s statement.

In Zirbes, the defendant was served by substitute service on her parent’s address in Los Angeles.  (Zirbes, supra, 187 Cal.App.3d at p. 1415.)  The defendant declared she did not receive mail at her parent’s address and that she was living at her different legal address where she had filed a petition for marital dissolution more than six months earlier.  (Ibid.)  Although her mother’s address was the one listed on the defendant’s driver’s license, the defendant maintained a completely separate household.  (Ibid.)  Therefore, the court in Zirbes found service on her mother’s address was not reasonably calculated to give the defendant notice.  (Id. at p. 1416.) 

The proof of service created a rebuttable presumption, and Defendant’s mother’s bare-bones declaration did not effectively rebut it. Unlike in Zerbes, there is no evidence that Defendant has a separate household and different legal address. Rather the evidence presented by Plaintiff suggests Defendant uses the 3800 Amesbury Road address or resides there. The Court concludes that the substitute service was reasonably calculated to give Defendant actual notice of the proceedings and an opportunity to be heard. Defendant’s motion to quash service of summons is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative. The Court will be dark on November 18, 2019. A party requesting argument should contact Department 4B for an alternate hearing date.