Case Number: BC638701 Hearing Date: May 30, 2018 Dept: 4

MOVING PARTY: Defendant Richard Romero

RESPONDING PARTY: Plaintiff Sergio Alvarez

Motion to Quash Service of Summons and Complaint

The court considered the moving, opposition, and reply papers.

BACKGROUND

On October 27, 2016, plaintiff Sergio Alvarez filed a complaint against defendants Romero Motors Corporation, Aquirecorpo’s Norwalk Auto Auction, Norwalk Auto Auction, Romero Motors Mazda and Hyundai, and Richard Romero for premises liability, negligence, negligence per se, and res ipsa loquitur. Plaintiff alleges that on October 28, 2014, plaintiff was at defendants’ premises when an employee of defendants struck plaintiff in his head with a metal bar that defendants’ employee was using to unload a vehicle from a tow truck. The blow to plaintiff’s head caused laceration with severe bleeding. Following the incident, defendants’ employees attempted to wrap plaintiff’s head. Paramedics were summons and plaintiff was transported to the hospital.

DISCUSSION

Defendant Richard Romero requests that the court quash service of the summons and complaint.

A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. CCP § 418.10(a). CCP § 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. Roy v. Superior Court (2005) 127 Cal. App. 4th 337, 342. Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

Under Evidence Code § 647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Under Evidence Code § 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

Individual defendant Romero argues that plaintiff improperly substitute served defendant at a business without making any good faith effort to personally serve him.

Plaintiff has not filed a proof of service as to Richard Romero. The motion is premature and the court cannot ascertain whether Romero was properly served. The only proof of service that was filed was as to Norwalk Auto Auction.

The motion is therefore DENIED WITHOUT PREJUDICE.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 30, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court