Petrosov v. Rabbany

QUASH SERVICE OF SUMMONS AND COMPLAINT

(CCP §§ 418.10(a)(1), 415.20(b))

TENTATIVE RULING:

Defendant Rabbany’s motion is GRANTED.

ANALYSIS:

I. Background

This action is for motor vehicle negligence and general negligence.

II. Legal Standard

Code of Civil Procedure section 418.10(a) provides in-part: “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: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her….”

“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service. (Atkins, Kroll & Co. v. Broadway Lbr. Co., 222 Cal.App.2d 646, 653 [35 Cal.Rptr. 385, 12 A.L.R.3d 880]; Turner v. Superior Court, 218 Cal.App.2d 468, 472 [32 Cal.Rptr. 717]; Holtkamp v. States Marine Corp., 165 Cal.App.2d 131, 137 [331 P.2d 679]; Briggs v. Superior Court, 81 Cal.App.2d 240, 251 [183 P.2d 758].)” (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211; see also Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.)

III. Discussion

Defendant Rabbany specially appears to quash service of summons of the complaint based on improper substituted service because Rabbany contends the summons and complaint were left at an address where Rabbany did not live at the time and was left with Rabbany’s “brother” who does not exist.

The motion appears to be filed after the time Rabbany has to plead (more than 30 days after 12/12/19, which is 10 days after mailing completed substituted service (See CCP § 415.20(b); POS filed 12/31/19)), but the Court nevertheless finds good cause to allow the serving and filing of this motion because there is evidence that the service was not made at Rabbany’s residence and that Rabbany does not have a brother. (Rabbany Decl. ¶¶ 1-4.) Based on the foregoing, Rabbany makes a proper motion under CCP § 418.10(a)(1).

Thus, the burden is on Plaintiff to provide facts requisite to the effective service.

There is no reply to the opposition. Thus, Plaintiff does not carry this burden.

Accordingly, the motion is GRANTED.