2018-00232085-CU-PA

Anna Tagintseva vs. Nataliya Basarab

Nature of Proceeding: Motion to Quash Service of Summons (Patricia Neureuthers)

Filed By: Hyatt, Allison S.

Defendant Patricia Neureuther’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 she was never served with the summons and complaint. “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 Poway, California on May 9, 2018 at 1:15 p.m. The proof of service states that the papers were served by RightNow Process Servers with a listed address in Lemon Grove, California. The

proof of service is signed by John Huneycutt. Defendant obtained the declaration of John Huneycutt, a registered process server and owner of RightNow Process Service. Mr. Huneycutt declares that he was contacted by Defendant’s counsel to verify that he served Defendant. (Huneycutt Decl. ¶¶ 2, 3.) Mr. Huneycutt indicated that he did not recognize Defendant’s name. He reviewed the subject proof of service and states that he did not serve Defendant and was never contacted by Plaintiff to do so. (Id. ¶¶ 5, 8.) He further indicates that the proofs of service contain errors, specifically, his business is RightNow Process Service not RightNow Process Servers, he does not use the phone number listed on the proof of service, and that he has never written the address on a proof of service that way it was listed on the subject proof. (Id. ¶ 6.) He also indicates that the signature on the proof is not his and appears forged. (Id. ¶ 7.)

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 a “John Honeycut” who states that he is the one who served Defendant. (Honeycut Decl.) Mr. Honeycut states that he is a process server though he is not registered. (Id. ¶ 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. Honeycut declares that he has a business named RightNow Process Servers which he picked because RightNow Process Service already existed and he thought he could generate business if people searched for RightNow Process Service and his business name came up. (Id. ¶ 3.) He states that he failed to notice the mistakes on the proof of service regarding the spelling of his name, his address and phone number because he had a virtual assistant from “Fiverr” named “Angela” complete the proof of service. (Id.¶ 6.) He says that he is not the John Huneycutt listed on the proof of service but that he did serve Defendant. He states that “[a]pparently Angela” lost his information and performed an internet search and came up with John Huneycutt’s information. (Id. ¶ 8.) Noticeably absent is any declaration from “Angela” to this effect.

In short, the Court finds Mr. Honeycut’s declaration unworthy of any credence. Indeed, it appears to this Court that someone obtained Mr. Huneycutt’s information in an apparent attempt to create a facially valid proof of service. The Court finds that Mr. Honeycut’s declaration that he did not notice the numerous errors on the proof of service (including the spelling of his own name) inherently unbelievable. Moreover, while Mr. Honeycut states that he served Defendant, he provides no details regarding the service, for example, he provides no description of Defendant or any indication as to how he knew that the person he purportedly served was Defendant. (Honeycut Decl. ¶ 11.)

Plaintiff has not met her burden to establish proper service.

As a result, the motion to quash is granted.