2018-00232085-CU-PA

Anna Tagintseva vs. Nataliya Basarab

Nature of Proceeding: Motion to Quash Service of Summons (Tony Nicely)

Filed By: Hyatt, Allison S.

Defendant Tony Nicely’s motion to quash service of summons is granted.

Defendant’s request for judicial notice of the smalls claims action Plaintiff filed in this Court is granted. Plaintiff’s objection to the request for judicial notice is overruled. The Court may properly take judicial notice of Court records. (Evid. Code § 452(d) and the records provide background regarding this lawsuit.

This case arises from a motor vehicle accident involving self-represented Plaintiff Anna Tagintseva and Defendant Nataliya Basarab. Ms. Basarab was driving Defendant Pughsley’s vehicle at the time. Plaintiff initially filed the action in this Court’s small claims division but then dismissed the matter without prejudice. As seen from the complaint, she then filed the action in Yolo County and obtained a default judgment against Ms. Basarab and Pughsley. A motion to vacate the judgment was granted on the basis of improper venue and lack of service. Plaintiff then filed the matter here again naming Ms. Basarab and Pughsley and adding defendants Geico Insurance Company in addition to Geico president/CEO Tony Nicely, Geico Vice President of Claims Gregory Jacobi and Geico claims adjuster Patricia Neureuther.

Defendant moves to quash service of summons pursuant to CCP § 418.10 on the basis that he was never served with the summons and complaint and that in any event he is a Maryland resident and the Court lacks personal jurisdiction over him “C] ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) “When a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving facts that did give the court jurisdiction, that is the facts requisite to an effective service.’” (Id. at p. 387 [citations omitted].)

The proof of service states that Defendant was personally served in Chevy Chase Village in Maryland on May 9, 2018 at 12:05 p.m. The proof of service states that the papers were served by “ESQ Process Servers” which has an address in Maryland. The proof of service was signed by Les Johnson. Defendant obtained the declaration of Leslie Johnson, II. Mr. Johnson declares that he is a process server and owner of ESQ Process Servers. Mr. Johnson was contacted by Defendant’s counsel to verify that he served Defendant. Mr. Johnson declares that he checked his records and that he did not perform service on Defendant. (Johnson Decl. ¶¶ 1-4.) He states that his office was never contacted by Plaintiff, that he does not have a file for Plaintiff and did

not perform the service stated on the proof of service. (Id. ¶ 7.) He points out that his name is Leslie Johnson, not Les Johnson and that the signature on the proof of service is not his and appears forged. (Id. ¶ 6.)

Plaintiff’s opposition fails to meet her burden to demonstrate that service was proper. While referring to numerous extraneous matters in her opposition, at base she asserts that Defendant was personally served. Plaintiff presents a declaration from Ronald White who states that he is a process server though he is not registered. (White Decl.

¶ 2.) Here, given that service was not made by a registered process server, there is no presumption that service was proper pursuant to Evidence Code § 647. Mr. White declares that he received the papers from Plaintiff for service but since his office is in Sacramento, it was too expensive to fly to Maryland and so he contacted a local process server named “Les Johnson” to serve Defendant. (Id. ¶¶ 4, 5.) Mr. White states that Les Johnson not Leslie Johnson, II performed the service. Noticeably absent is a declaration from the Les Johnson who Mr. White states performed the service. In addition, Mr. White fails to explain the fact that the proof of service indicates that ESQ Process Servers served the papers and yet the owner of that business, Leslie Johnson, II states that he had no file for Plaintiff and that he did not perform the service.

In short, the Court finds Mr. White’s declaration unworthy of any credence. Indeed, it appears to this Court that someone not associated with ESQ Process Servers utilized the name of ESQ Process Servers in an attempt to create a facially valid proof of service. The Court finds Mr. White’s declaration inherently unbelievable. Again, there is no declaration from the person that Mr. White said actually performed the service and there are no details regarding the service.

Plaintiff has not met her burden to establish proper service.

As a result, the motion to quash is granted.

Given the above, the Court need not reach Defendant’s alternate argument that personal jurisdiction is lacking because he is a Maryland resident.