2017-00214213-CU-BC

Elena Rapoport vs. Sergey Smushko

Nature of Proceeding: Motion to Quash Service of Summons (Sergey Smushko)

Filed By: Federov, Sergiy

Defendant Sergey Smushko’s Motion to Quash Service of Summons is granted.

The Court notes that the plaintiff’s request for default was denied. (ROA # 25)

Defendant seeks to quash service of summons pursuant to CCP 418.10, contending that he was not properly served by substitute service at his address. Sergey Smushko and his wife Lyudmilla state that the only other adult living at the address is his wife, who does not match the description of the woman served as stated on the proof of service. (See Declaration Sergey Smushko, Declaration of Lyudmila Smushko.)

The proof of service is signed by the registered process server, Jenice Rossner, and states that plaintiff was served by substituted service on July 25, 2017 at 10:55 a.m. by serving Jane Doe (Russian -Female-35 y.o – Brown Hair-5’6″-170 lbs) / Co Occupant) at 4525 Antelope Park Way, Antelope, CA 95843.

The return of a registered process server upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return. Evidence Code section 647. California Evidence Code § 604 states: “The 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.” Ev Code section 604.

Lyudmila Smushko states in her declaration that she is 39-years old, has blond hair, is 5′ in height and weighs 115 lbs, and denies that she was ever handed or left with the summons and complaint for this lawsuit and has never seen a copy of these documents in mail. (Declaration of Lyudmila Smushko)

The Court finds that the discrepancy in the descriptions is concerning, especially as to the hair color, 55 lb weight difference, and 6 inches in height difference. These discrepancies are not explained by the fact that the descriptions are mere estimates based on a cursory contact with the individual.

When a process server’s declaration under CCP § 684.220, subd. (b), inaccurately describes an individual, the presumption of proper service arising under Ev C § 647 was effectively rebutted by evidence that there had been no proper service. American Express Centurion Bank v. Zara (2011, 6th Dist) 199 Cal App 4th 383.

In opposition, plaintiff has presented no additional evidence from the process server on the disputed service. When a process server’s declaration under CCP § 684.220, subd. (b), inaccurately describes an individual, the presumption of proper service arising under Ev C § 647 was effectively rebutted by evidence that there had been no proper service. Actual notice was not a substitute for proper service and was insufficient to confer jurisdiction. In the absence of evidence from the process server, the uncontradicted evidence is that the process server did not personally serve defendant. Plaintiff therefore did not carry its burden of proving the facts requisite to an effective service. American Express Centurion Bank v. Zara (2011, 6th Dist) 199 Cal App 4th 383, 390.

Plaintiff’s opposition contains no specific additional evidence, only the unsupported statement that “the process server duly recorded an approximate description of the person who received the documents .” As noted above, the description is not an approximate description of Lyudmilla Smushko. Absent, say, a photograph of Lyudmilla, comporting with the description of the process server, the court cannot say that the description is even “approximate”.

Therefore, the motion to quash service of summons is granted.

It further bears noting the policy that favors adjudication on the merits. (see, e.g. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1079..)