BANK OF AMERICA, N.A. vs TABAN

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time

23CV013451: BANK OF AMERICA, N.A. vs TABAN 04/11/2024 Hearing on Motion for Order to Quash Service of Summons in Department 54

of such delivery.” (Code Civ. Proc. § 415.10.) Where service is made pursuant to Code of Civil Procedure section 415.10, the proof of service must show “the time, place, and manner of service and facts showing that the service was made in accordance with” the statutes governing service of summons and “shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, .” (Code Civ. Proc. § 417.10(a).)

“The requirement of notice ‘is not satisfied by actual knowledge without notification conforming to the statutory requirements’ [Citation]; it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.” (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251.)

“‘Personal service’ means the actual delivery of the papers to the defendant in person.” (Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832.) The strict “actual delivery” requirement is generally relaxed where the defendant attempts to evade service and the papers are left in his presence. (Id. at p. 833, citing cases.) However, where the defendant has not attempted to evade service but instead “seems to have been perfectly amenable to proper service,” actual delivery is required. (Ibid.)

In Sternbeck, the process server left the papers with the defendant’s wife on the front driveway of their home and received the wife’s assurance that her husband (the defendant) would be given the papers. The defendant was home at the time, “out of view [of the process server] 100 feet distant in the rear, building a barn, process server having neither proceeded farther to the rear nor attempted to contact him.” (Sternbeck, supra, 148 Cal.App.2d at p. 831.) The court held that this was not effective personal service.

The present case differs from Sternbeck in that Defendant was present shortly after the process server handed the papers to Defendant’s wife and interacted with the process server during that time. However, this is a distinction without a difference. Indeed, in Sternbeck, the defendant’s wife testified that she gave the papers to the defendant five to ten minutes after she received them. (Sternbeck, supra, 148 Cal.App.2d at p. 836 (dis. opn. of Ashburn, J.).)

The Court does not find it relevant that Defendant heard the process server as she approached his house. Unlike the defendants in the cases cited by Plaintiff (see e.g., Khourie v. Sabek (1990) 220 Cal.App.3d 1009, 1013-1014), there is no indication here that Defendant was trying to evade service.

Finally, “[w]hen a defendant challenges the court’s personal jurisdiction on the ground of improper service of process, ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) While a registered process server’s proof of service creates a rebuttable presumption of the facts stated therein, Defendant has submitted sufficient evidence to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV013451: BANK OF AMERICA, N.A. vs TABAN 04/11/2024 Hearing on Motion for Order to Quash Service of Summons in Department 54

rebut that presumption, and Plaintiff has not submitted any additional evidence to prove the facts requisite to an effective service.

Accordingly, Defendant’s motion is GRANTED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

NOTICE:

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV013451: BANK OF AMERICA, N.A. vs TABAN 04/11/2024 Hearing on Motion for Order to Quash Service of Summons in Department 54

signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.