2011-00102831-CU-PO

Sarah Rudolph-Sandoval vs. Stephen Paul Phelps

Nature of Proceeding: Motion to Quash Service of Summons

Filed By: Daugherty, Lori Mae

Defendant Stephen Phelps’ motion to quash service of summons and complaint is
granted.

The Court considered Plaintiff’s opposition despite Defendant’s claim it was untimely
served as Defendant was able to file a reply addressing the opposition.

Defendant moves for an order quashing service of the summons and complaint
pursuant to CCP § 418.10(a)(1) on the grounds that the Court lacks jurisdiction over
him because he was not properly served.

A procedural history is in order. This case was initially dismissed by the Presiding
Judge without prejudice on November 5, 2013, when Plaintiff failed to appear for trial.
Plaintiff ultimately obtained relief from that order and the case was reinstated against
defendant on March 21, 2014. The instant motion to quash was filed on April 10,
2014.

First, the Court rejects Plaintiff’s contention that Defendant has made a general
appearance in the action. A general appearance in an action waives any objection to
personal jurisdiction, and the defendant submits to the personal jurisdiction of the
court. (See, e.g., Titus v. Superior Court (1972) 23 CA3d 792, 800-801.) “A general
appearance by a party is equivalent to personal service of summons on such
party.” (CCP § 410.50(a).) Here, Defendant specially appeared for trial assignment in
front of the presiding judge on November 5, 2013, and the matter was dismissed
without prejudice pursuant to CCP § 581(b)(5) which provides that the Court may
dismiss an action “when either party fails to appear on the trial and the other party
appears and asks for dismissal.” (Id.) As seen from Defendant’s counsel’s declaration
in reply, she specially appeared for trial assignment and informed the Court that
Defendant had not been properly served. (Daugherty Reply Decl. ¶ 4.) Counsel
declares that the Court “indicated that service did not seem proper [and] dismissed the
matter on its own motion.” (Id.) Thus, the Court rejects the argument that Defendant
made a general appearance.

The Court finds that Defendant has shown he was never properly served with the
summons and complaint. Here Defendant argues that he never resided at the 5350
Dunlay Drive #816, Sacramento, CA 95835 address at which Plaintiff attempted to
serve him by substitute service. While Plaintiff argues that the only showing in this
regard is a declaration from Defendant’s counsel, the Court does not find that the
motion fails on this basis. Indeed, Defendant submitted a declaration in reply
confirming his counsel’s initial declaration that he never resided at 5350 Dunlay Drive
#816, Sacramento, CA 95835. (Def.’s Decl. ¶ 4.)

In opposition, Plaintiff argues that the address was nevertheless a proper address for
substitute service given that the address (5350 Dunlay Drive #816, Sacramento, CA
95835) was the address Defendant (a real estate broker) listed on the State of
California Department of Real Estate’s website as his mailing address and main office
address. (Schwarzkopf Decl. Exh. 2.) Defendant acknowledges that he listed this
address but argues that he was not a practicing real estate agent and did not believe
mail would be sent to this address, which is his mother’s residence, and he did not
actually use that address as his business address. Defendant is correct that Plaintiff
failed to make any showing that she strictly complied with the statutes governing
substitute service as there was no showing in opposition that the process server
informed Defendant’s mother of the contents of the papers left with her and thereafter
mailed a copy of the summons and complaint to the address where the summons and
complaint were left. (CCP § 415.20(b).) Once a defendant challenges the court’s
personal jurisdiction on the ground of improper service of process the burden is on
plaintiff to prove the facts necessary to an effective service. (Summers v. McClanahan
th
(2006) 140 Cal.App.4 403, 413.) Plaintiff’s counsel’s declaration indicates that a
declaration of diligence (apparently from the process server) was attached to her
original motion to set aside the dismissal filed in December 2013, but no such
declaration was attached to her instant opposition and the Court will scour the file to
find documents which should have been submitted in connection with the instant
opposition. In any event, even if Plaintiff had made some type of showing in this
regard, Defendant submitted a declaration from his mother in reply stating that the
process server simply dropped some papers on her porch after she told him her son
did not live there and did not explain what the papers were. (Nadine Phelps Decl. ¶¶ 9
-11.) She states that she forgot to give the papers to her son but that she never
received a copy of the documents in the mail. (Id. ¶ 13.) Having failed to demonstrate
that the substitute service statutes were complied with, Defendant’s motion to quash
service of summons and complaint is granted.

The Court notes that Defendant’s default was entered on April 21, 2014, after the
instant motion was filed. Apparently Plaintiff submitted the request in connection with
the opposition to the motion, though such request was not mentioned by Plaintiff. In
addition, Defendant does not appear to be aware that his default was entered as his
reply brief does not mention the default. The Court sets aside the default on its own
motion. Indeed, the filing of a motion to quash pursuant to CCP § 418.10 “shall extend
the defendant’s time to plead until 15 days after service upon him of a written notice of
entry of an order denying his or her motion…” Default should not have been entered
while the instant motion was pending.

As a result, the service of summons and complaint is quashed and the default entered
against Defendant on April 21, 2014, is set aside.

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.