Case Name:??? CACH, LLC v. Ronald Escobar a/k/a Ronald R Escobar, et al.
Case No.:??????? 2016-1-CV-291361
Motion to Quash Service of Summons by Specially Appearing Defendant Ronald Escobar
On February 3, 2016, plaintiff CACH, LLC (?Plaintiff?) filed a complaint against defendant Ronald Escobar a/k/a Ronald R Escobar (?Escobar?) asserting causes of action for breach of loan agreement, account stated, and open book account.? According to the allegations, defendant Escobar entered into a loan agreement with Plaintiff?s assignor and thereafter failed/ refused to pay the sum due and owing. (Complaint, ??14 ? 18.)? Plaintiff alleges damages in the amount of $8,382.10. (Complaint, ?19.)
On April 14, 2016, defendant Escobar specially appeared and filed this motion to quash service of summons.
- Specially Appearing Defendant Escobar?s motion to quash service of summons is DENIED.
?A defendant is under no duty to respond in any way to a defectively served summons.? It makes no difference that defendant had actual knowledge of the action.? Such knowledge does not dispense with statutory requirements for service of summons.?? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2015) ?4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg).)? ?[N]otice does not substitute for proper?service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.?? (Ruttenberg, supra, 53 Cal.App.4th at p. 808.)? ?[I]n California, ?…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.?? (Id. at p. 809.)
Appellant was under no duty to act upon a defectively served summons.? The requirement of notice ?is not satisfied by actual knowledge without notification conforming to the statutory requirements? [citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.
(Kappel, supra, 200 Cal.App.3d at pp. 1466 ? 1467.)
A ?defendant?s first line of attack normally is a motion to quash service for lack of personal jurisdiction under Code of Civil Procedure section 418.10, subdivision (a)(1).? The same motion is used to attack defects in the manner in which summons was issued or served.?? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2015) ?3:376, p. 3-103.)? ?Without valid service of summons, the court never acquires jurisdiction over defendant.? Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant.?? (Id. at ?4:413, p. 4-67 citing Code Civ. Proc. ?418.10, subd. (a)(1).) Code of Civil Procedure section 418.10, subdivision (a)(1) states, in pertinent 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.?? (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211.)? ?Although the defendant is the moving party, the burden of proof is on the plaintiff.?? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ?3:384, p. 3-105 citing Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793 (Floveyor), et al.)? ?[T]he burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.?? (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize).)? ?Where a motion to quash is made, the burden of proof is on the plaintiff to establish the facts of jurisdiction, by declarations, verified complaint or other evidence.?? (2 Witkin, California Procedure (4th ed. 1996) Jurisdiction, ?211, p. 775 ? 776.)
On March 4, 2016, Plaintiff filed a proof of personal service of the summons and complaint on defendant Escobar.? Normally, filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper.? (Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ?4:362, p. 4-58 citing Floveyor, supra, 59 Cal.App.4th at p. 795.)
However, defendant Escobar can rebut the presumption.? ?[W]hen the party against whom such a presumption operates produces some quantum of evidence casting doubt on the truth of the presumed fact, the other party is no longer aided by the presumption. The presumption disappears, leaving it to the party in whose favor it initially worked to prove the fact in question.? (Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882.)? In moving to quash, defendant Escobar submits his declaration stating that he did not receiver personal service of the summons and complaint.? Defendant Escobar declares that, while he does reside at the address where service was made, he and his wife were in Modesto at a furniture store to purchase some household items.? An invoice and credit card receipt with a time stamp of 9:50 a.m. supports defendant Escobar?s declaration.? Defendant Escobar declares further that he and his wife had lunch in Modesto, stopped at Casa de Fruta for about an hour, and visited his uncle at a convalescent home in Morgan Hill for approximately one and a half hours.? Defendant Escobar declares he and his wife did not return home until approximately 4:30 p.m.? Based on this declaration, defendant Escobar contends he was not at home to be served at 2:14 p.m., the time of purported service.
In opposition, Plaintiff submits a declaration from the registered process server, Kayed Asfour (?Asfour?), who declares that he arrived at the location of service at approximately 2:14 p.m.? The address appeared to Asfour to be the location of a business, ?Escobar Sign Co.?? Asfour spoke to a black-haired white male who appeared to be approximately 45-55 years of age, 5?6? ? 5?8? in height, and weighing 160 ? 180 pounds.? Asfour explained he had legal documents to deliver for Ronald Escobar a/k/a Ronald R. Escobar and the individual identified himself as Ronald Escobar a/k/a Ronald R. Escobar.? Asfour then handed the documents identified in the proof of service to Ronald Escobar a/k/a Ronald R. Escobar.
In reply, defendant Escobar questions Asfour?s credibility by submitting a supplemental declaration in which he states there is no signage at his residence to suggest that it is a business.? Defendant Escobar contends the only way for Asfour to know that the address was for a business was for Asfour to have conducted a search of an internet database.? From this evidence, defendant Escobar asks the court to draw the inference that Asfour did not actually visit the stated address.? Defendant Escobar also declares he is brown-skinned, five feet five inches in height, with salt and pepper hair, weighing approximately 200 pounds.? Defendant Escobar also proffers a copy of his driver?s license which states he was born in 1962 (53 ? 54 years of age), five feet five inches in height, 190 pounds, with brown hair.? Defendant Escobar contends he does not match the description given by Asfour.? Defendant Escobar also submits declaration from two separate defendants in unrelated cases to further call into question Asfour?s credibility.
The court does not find the declarations from the other defendants relevant or that they create any reason to question Asfour?s credibility.? Whether or not Asfour conducted an internet search to determine that defendant Escobar?s residence is also a business address is insufficient to refute Asfour?s declaration regarding personal service at the stated address.? Defendant Escobar?s self description in reply does not substantially differ from the description provided by Asfour.
The court is presented with dueling declarations; essentially a ?he said/ she said? situation.? Evidence Code section 647 creates a presumption in favor of a declaration by a registered process server.? Evidence Code section 647 provides, ?the return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of 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.?? Evidence Code section 604 states that the effect of a presumption affecting the burden of producing evidence is that the trier of fact is required to assumed the existence of the presumed fact ?unless and until evidence is introduced which would support a finding of its nonexistence.?? When the opposing party produces evidence casting doubt on the truth of the presumed fact, the other party is no longer aided by that presumption.? (Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882.)? But the evidence produced must be sufficient to support a finding that the presumed fact does not exist.? At that point, the presumption ?disappears? (i.e., ?the bubble bursts?).? (Evid. Code, ?604; Wegner et al., California Practice Guide: Civil Trial and Evidence, (Rutter Group 2006) ?8:3527.)
For instance, where a presumption that a mailed letter was received has been established, the adverse party may deny receiving the letter to overcome the presumption.? In other words, that testimony is sufficient to support a finding of non-receipt.? Once the adverse party overcomes the burden of producing evidence, the trier of fact must then determine whether the letter was received from the evidence presented without reference to the presumption.? (Wegner, et al., supra, at ?8:3528.) ?Nonetheless, the trier of fact retains the prerogative to draw reasonable inferences from the evidence.? (Evid. Code, ?600, subd. (b); Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421 (Craig).)? That is, the trier of fact may weigh a party?s denial of receiving a letter against an inference of receipt (drawn from proof that the letter was mailed). (Evid. Code, ?604, Comment; Craig, supra, 84 Cal.App.4th at p. 422.)
Based on the evidence submitted, whether defendant Escobar was actually served is a close call.? That is, there is no clear evidence in favor of either party.? Specifically, without the presumption, it is merely one party?s word against the other.? Given the instant factual dispute, in which there is no reason to question either party?s credibility, it may serve to examine the policy governing motions to quash.? As a general rule, moving to quash summons rarely makes sense where based solely on defects in the manner of service (e.g., papers left with someone not authorized to receive service on defendant?s behalf).? Except perhaps where the statutes authorizing dismissal for delay in service have run, there is little to gain by a motion to quash.? (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (Rutter Group 2015) ?4:3, p. 4-2.)? Plaintiff will merely re-serve the papers and nothing will be accomplished except delay and unnecessary expanse for the parties, as well as judicial resources.? (Id. at ?4:412, p. 4-63.)
Accordingly, defendant Escobar?s motion to quash service of summons is DENIED.? Defendant Escobar is entitled to 15 days after service of written notice of entry of an order denying the motion to quash to respond to the complaint.? (See Code Civ. Proc., ?418.10, subd. (b).)