The Motion by Specially Appearing Defendants Patrick Devaney and Sophia Devaney to Quash Service of Summons and Complaint is GRANTED.
Code of Civil Procedure section 418.10(a) provides: “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. [¶] (2) To stay or dismiss the action on the ground of inconvenient forum. [¶] (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 … of Title 8.”
The Proofs of Service indicate that mailing took place on February 19, 2020. (ROA Nos. 24 and 25.) Accordingly, service was complete on February 29, 2020 (Code Civ. Proc., § 415.20(b) [substitute service is complete 10 days after the day the papers are mailed]) and the last day for the Devaneys to respond was March 30, 2020 (Code Civ. Proc., § 412(a)(3)). Due to the Covid-19 pandemic and the resulting Emergency Orders of the Orange County Superior Court, the Devaneys’ time to respond was extended to May 26, 2020. (RJN, Ex. 3, Emergency Orders.) The instant motion to quash was filed on July 6, 2020 and is untimely. (See ROA No. 65.)
Although the Devaneys contend, in their late-filed Reply, that Plaintiffs’ counsel extended their time to respond to July 6, 2020, Plaintiffs’ counsel’s email indicates that the Devaneys’ time to file an answer was extended to July 6, 2020. The court finds that while the Devaneys’ time to file an answer was extended, their time to file a motion to quash was not. Plaintiffs’ counsel specifically limited the extension to an answer. (See Vasin Decl., ¶ 2, Ex. F.) Nevertheless, the Devaneys have shown good cause for further time to file a motion to quash. (Code Civ. Proc., § 418.10(a); Reply, 5:8-12.)
Improper or invalid service is properly challenged by a motion to quash. (Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 855, fn. 4; Code Civ. Proc., § 418.10, subd. (a)(1).) Plaintiffs have filed a properly executed proof of service showing service of the Summons and Complaint on the Devaneys via substituted service. (ROA Nos. 24-25.) David V. Larsen, a registered process server, declares under penalty of perjury that he served papers by leaving the documents with “B. Ornellis,” a “security guard” and then mailed a copy of the Summons and Complaint to the Devaneys at the place where the copies were left. (Id.) Plaintiffs’ properly executed proof of service showing service of the Summons and Complaint on the Devaneys via substituted service creates a rebuttable presumption that service was proper. (Floveyor Int’l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)
The Devaneys have submitted evidence to rebut the presumption of proper service. In their declarations, the Devaneys declare that they have never owned the property located at 18326 Avenida Aprice in Rancho Santa Fe, California and that the Property has never been their dwelling house, usual place of abode, usual place of business, or usual mailing address. (P. Devaney Decl., ¶ 4; S. Devaney Decl., ¶ 4.) Plaintiffs counter by producing evidence indicating that, pursuant to a Westlaw search, the last known address of the Devaneys was 18326 Avenida Aprice in Rancho Santa Fe, CA 92607. (Krieger Decl., ¶ 5.)
The court finds the Devaneys have successfully rebutted the presumption of proper service. Plaintiffs have not met their burden to show service at a “proper place,” i.e., at the Devaneys’ dwelling house, usual place of abode, usual place of business, or usual mailing address. The statement that a Westlaw search returned results indicating 18326 Avenida Aprice in Rancho Santa Fe, California was the Devaneys’ last known address is insufficient on its own and there is no other evidence which supports 18326 Avenida Aprice as a proper place for service.
Even liberally construing the California statutes, it is established that actual notice of the action is not a substitute for proper service and is insufficient to confer jurisdiction. As recognized by the Court of Appeal in Summers, “no California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.)
Next, Plaintiffs contend that the Devaneys engaged in acts consistent with the jurisdiction of this Court when Patrick Devaney requested a 15 day extension to respond to the FAC, requested to meet and confer pursuant to Code of Civil Procedure section 435, indicated he was attempting to file a response with the Court, expressed a willingness to sign Acknowledgments of Receipt of service of process; and the Devaneys delayed in seeking to quash service.
A defendant “appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.” (Code Civ. Proc., § 1014.) None of that occurred here.
Other acts that may be considered a general appearance include: the filing of a motion or application for relief, thus implying that the court has jurisdiction of the person; initiating discovery proceedings or responding to discovery; or participating in a trial or hearing on the merits. (2 Witkin (2020) Cal. Proc. 5th Jurisdiction §§ 208-213.)
Here, the Devanyes did not file an application or motion, or participate in the action in a manner which recognized the authority of the court to proceed. Patrick Devaney engaged in limited correspondence with Plaintiffs’ counsel. Those communications did not acknowledge the authority of the court to entertain the action and did not amount to a general appearance.
Moving party to give notice.