CARCEIOLY v. KHALAF, ET AL.
Case No.: 1-13-CV-243344
DATE: June 12, 2014
TIME: 9:00 a.m.
DEPT.: 3

The motion to quash of defendant Robert Bonilla (“Defendant”) is DENIED.

Defendant contends that plaintiff Miguelangelo Carceioly (“Plaintiff”) failed to properly serve him with the summons and complaint in this action by substituted service because Plaintiff did not mail the summons and complaint to the address at which substituted service was attempted. (Code Civ. Proc., § 415.20, subd. (a) [substituted service requires the plaintiff to leave a copy of the summons and complaint at the dwelling house, usual place of business, or usual mailing address of the defendant in the presence of an adult “competent member of the household” or person “apparently in charge,” and, thereafter, to mail copies of the complaint and summons to the defendant at the place where the copies were left].) Defendant points out that there is no declaration of mailing attached to the proof of service filed with the Court on December 11, 2013. Defendant does not contend that Plaintiff failed to meet the other requirements of substituted service or indicate that he did not receive the summons and complaint delivered by Plaintiff.

In opposition to Defendant’s motion, Plaintiff’s counsel declares that the summons and complaint were left with a person apparently in charge of Defendant’s address on December 4, 2013 and were mailed to the same address on December 6, 2013. (Declaration of Phung H. Truong, ¶¶ 3-4.) However, the proof of service by mail was mistakenly omitted when the proof of service of summons was filed on December 11. (Id. at ¶ 5.) After Defendant filed the instant motion, Plaintiff filed the proof of service by mail on May 22, 2014. (Id. at ¶ 6.) The proof of service now on file with the Court, which was executed on December 11, 2013, indicates that the summons and complaint were mailed to Defendant on December 6, 2013 at the same address at which they were left with the person apparently in charge. (See Proof of Service by Mail.) Given that Defendant has offered no evidence indicating that the summons and complaint were not mailed, Plaintiff has met his burden to prove service was valid. (See Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1440-1442 [plaintiff bears the burden of proving valid service by a preponderance of the evidence in connection with any motion challenging the propriety of service; in meeting this burden, “the filing of a proof of service creates a rebuttable presumption that the service was proper”]; see also Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.)