Case Name: Cavalry SPV 1, LLC v. Amanda Portzel
Case No.: 16CV292518

Defendant specially appears to bring this motion to quash service of summons, alleging she was not personally served as stated in the Proof of Service signed by a registered process server, and contending that she was never properly served under the Code of Civil Procedure.

Initially, as the Court had not received any opposition papers, and Defendant filed a “Statement of No Opposition Received,” the Court indicated in its tentative ruling that the motion to quash would be granted.

Plaintiff did, in fact, file an Opposition – and served it via overnight mail on counsel for Plaintiff. Although filed untimely on May 27, 2016 and therefore not in full compliance with CCP §1005(b), it was served on Defendant’s counsel via overnight mail, in compliance with §1005(c). The Opposition includes an explanation from Plaintiff’s counsel that the Court finds sufficient to establish a basis for relief due to counsel’s mistake, inadvertence or excusable neglect. Under CCP §475 as the Court finds no prejudice to Defendant, the Court has considered the Opposition.

Evidence Code §667 establishes a rebuttable presumption, affecting the burden of producing evidence, of the facts stated in the return of a registered process server. Defendant’s motion comes forth with such evidence, in Defendant’s declaration. Plaintiff’s Opposition refutes Defendant’s declaration with an evidentiary declaration from the registered process server. The Court must weigh the evidence presented, as the trier of fact.

Having carefully considered and weighed the evidence presented, the Court concludes that Plaintiff has met its burden, by a preponderance of the evidence, of establishing proper personal service on Defendant, in compliance with CCP §415.10. Defendant’s motion to quash is DENIED.