RYAN KOLSTAD vs SARAH EBRO et al

City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479.) Thus, once the presumption of proper service is gone, the trier of fact must weigh the evidence and decide whether or not service was effected pursuant to the applicable statutory requirements. (See Craig, supra, 84 Cal.App.4th at 421-22 [“‘[I]f a party proves that a letter was mailed, the trier of fact is required to find that the letter was received in the absence of any believable contrary evidence. However, if the adverse party denies receipt, the presumption is gone from the case.

The trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received.’”].)

Here, the proof of service filed for the operative Second Amended Complaint (“SAC”) states that service was effectuated on Defendant personally on October 20, 2025 at 5:13 p.m. at 595 Gettysberg Drive in San Jose by Krystal M. Wallace, a registered California process server, of Bender’s Legal Service, Inc. In order to accomplish personal service, a copy of the summons and complaint must actually be delivered to the person to be served. (Code Civ.

Proc., § 415.10.) This proof of service appears to be statutorily compliant, and thus creates a rebuttable presumption that service was proper.

In her motion, Defendant asserts that personal service on her was not properly effectuated because the summons and complaint were not handed to her by anyone who identified themselves as a process server, but rather simply left “loose” and unattended on her porch. (See Declaration of Sarah Ebro in Support of Motion to Quash Service of Summons (“Ebro Decl.”), ¶¶ 2-5.) Defendant includes a photograph which purports to show how the summons and complaint appeared at 595 Gettysberg Drive. (Id., ¶ 4, Exhibit C.)

She urges that such “drop” service does not satisfy the requirements of personal service.5 She further attaches the declaration of diligence filed by Ms. Wallace, wherein Ms. Wallace states that on October 20, 2025, she arrived at 595 Gettysberg Drive to begin a “stake-out.” (Id., ¶ 6, Exhibit D.) She continues that at 5:02 p.m., Defendant arrived at the property in a white Tesla and Ms. Wallace “approached [her] and served her with her set of documents.” (Ibid.) Ms. Wallace further states that Defendant “then became uncooperative, and did not want to accept service for this defendant.

Drop served on this occupant.” (Ibid.)

“Personal service usually contemplates actual delivery. But the person on whom service is sought may not, by merely declining to take the document offered, deny the personal service on the ground of lack of delivery, where under the circumstances it would be obvious to a reasonable person that a personal service was being effectuated.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.2d 209, 212, citing 40 Cal.Jur.2d 66.) “In such a case the service may be made by merely depositing the process in some appropriate place where it would be most likely to come to the attention of the person being served.” (Ibid.)

Attempted delivery to an uncooperative defendant, in his presence, is permitted. (See, e.g., In re Ball (1934) 2 Cal.App.2d 578, 579 [service deemed effective where server flung the process at a retreating defendant while telling him what it was]; Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 259- 260 [personal service accomplished where process was placed under windshield of defendant’s retreating vehicle].) Importantly, cases where manual physical delivery has not happened but service has nevertheless been held to have been effectuated “do not rewrite the requirement of personal service and permit some other service, but rather, analyze the facts of the service and find they are tantamount to a personal delivery.” (In re Abrams (1980) 108 Cal.App.3d 685, 695.)

With the foregoing in mind, the Court finds that personal service was successfully effectuated on Defendant. Notably, nowhere in Defendant’s declaration does she explicitly dispute the facts asserted in Ms. Wallace’s declaration of due diligence, including that she was physically present at 595 Gettysberg around 5 p.m. and encountered Ms. Wallace. Defendant’s photos of the service and summons on her porch support Ms. Wallace’s version of events that Defendant refused to cooperate and accept service and thus that the papers were “dropped” on her. If the summons and complaint were not physically handed to Defendant because she refused to accept them, she cannot deny that service was made on her. Therefore, Defendant’s motion to quash is DENIED.

5 Defendant also notes that she had a protective order in place against Plaintiff at that time, but the Court does not believe this is relevant as service was not attempted by Plaintiff himself and there is no indication that the process server was otherwise restrained from being in close proximity to Defendant. 10

Plaintiff separately moves for an in camera review and preservation of an audio recording of a hearing in the small claims action 24SC091228 “for the sole purpose of verifying whether specific sworn testimony was given.” Plaintiff’s motion is DENIED. The Court may not be enlisted to conduct investigation to “verify” facts for a litigant. Moreover, Gov. Code § 69957(b) states that a recording made for the internal personnel purpose of monitoring the performance of subordinate judicial officers “shall not be used for any other purpose.” Plaintiff asks the Court to use the recording for an “other purpose.” Plaintiff provides no contrary persuasive authorities.

The Court will prepare the final order.

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