2015-00174780-CU-PA

People of the State of Ca vs. Gary Wayne Spallino

Nature of Proceeding: Determination of Good Faith Settlement

Filed By: Beebe, John W.

Defendants’ motion for good faith settlement determination with Plaintiff State Farm

Mutual Automobile Insurance Co. is DROPPED for defective service.

The moving papers were purportedly served on the State of California, Road and Highway Builders of California, and Leon Johnston via personal service. The proof of service states “I caused each such envelope to be delivered by hand to the addressee

(s) noted in this Proof of Service.”

Because the proof of service is not actually signed by the process server, it is not clear that the moving papers were, in fact, personally served.(See e.g., 2 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2017) § 9:85.1-9:85.2, p. 9(I)-53 (“A declaration of personal service [of law and motion papers] is required by the person delivering the documents. [ . . .] [T]he proof of service must be signed by the messenger. A declaration signed by a secretary who gave the papers to the messenger is hearsay and is not sufficient. For the same reason, a declaration by the attorney (e.g., “I caused to be delivered by hand”) is likewise insufficient. If you are relying on personal service, the person who actually served the document must sign the proof of service.”) (emphasis in original).)

Additionally, the proof of service indicates that State Farm was served via mail on March 2, 2018. This provides only 16 court days notice, with zero additional calendar days for mail service.

Defective service deprives the court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)