19-CLJ-01304 SAN FRANCISCO FEDERAL CREDIT UNION VS. ISRAEL BARAJAS, ET AL.

SAN FRANCISCO FEDERAL CREDIT UNION ISRAEL BARAJAS
BRET A. YAPLE PRO/PER

MOTION TO QUASH SUMMONS BY ISRAEL BARAJAS TENTATIVE RULING:

The Motion of Defendant Israel Barajas (“Defendant”) to Quash Summons is DENIED.

The proof of service for the Amended Notice of Hearing fails to establish that Plaintiff San Francisco Federal Credit Union (“Plaintiff”) was provided with proper notice of this hearing. (See Proof of Service, para. 4.)

Defendant also failed to file a memorandum of points and authorities with his motion, as required by California Rules of Court Rule 3.1113(a).

Notwithstanding the above, the motion is also denied because Defendant fails to meet his burden of producing evidence that he was not properly served. When a defendant brings a motion to quash service of summons on the ground that it did not bring him within the trial court’s jurisdiction, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) Under Evidence Code section 647, a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. (See American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing of proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service].) Here, the proof of service filed by Plaintiff was completed by a registered process service averring that Defendant was personally served.

The burden therefore shifts to Defendant to produce evidence he was not served. (See American Exp., supra at 390.) Although Defendant claims in his declaration that he was not personally served and that the summons and complaint were left in his mailbox, Defendant’s explanation is unpersuasive. (See id. [trial court is not required to accept self-serving evidence contradicting process server’s declaration].) The process server includes a description of Defendant in the proof of service, yet Defendant offers no explanation of who this individual is, if not Defendant. Further, Defendant claims that he was at his girlfriend’s house at the time and that his stepfather found the summons and complaint in their mailbox, but offers no corroborating declaration from his girlfriend or his stepfather.

Defendant is to file and serve an Answer to the Complaint on or before June 25, 2019.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.