Pacheco v. HomeRun Financing, LLC, et al.

(36) Tentative Ruling

Re: Pacheco v. HomeRun Financing, LLC, et al. Superior Court Case No. 26CU00366

Hearing Date: September 1, 2026 (Dept. 502)

Motion: by Defendant Pace Funding Group, LLC to Quash Summons

Tentative Ruling:

To grant. (Code Civ. Proc., § 418.10.)

If oral argument is timely requested, it will be entertained on Thursday, September 3, 2026, at 3:30 p.m. in Department 502.

Explanation:

“A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) “When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v.

Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440.) “The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) In other words, if a proof of service is not filed, or the proof of service is deficient, the burden shifts to the party attempting service to prove the service was valid. (Dill, supra, 24 Cal.App.4th at pp. 1442- 1443.)

“Proof that a summons was served on a person within this state shall be made . . . by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter.” (Code Civ. Proc., § 417.10, subd. (a).)

A review of the court’s docket reflects partial pages of a proof of service of summons, Judicial Council form POS-010, was filed on June 29, 2026. The proof of service purports to have served the following documents: “SUM-100, CM-010, PLC-C-001, MC- 025, Notice of Case Management Conference and Assignment of Judge for All Purpose.” (See the Proof of Service of Summons, filed on June 29, 2026.) The court further notes that the operative complaint and summons in this case are the First Amended Complaint and Amended Summons filed on May 6, 2026 and May 13, 2026, respectively. Accordingly, the proof of service fails to discern whether the operative complaint and summons were served as opposed to the original complaint and summons. Also, the proof of service fails to identify who effected the purported service. 6

Moreover, use of Proof of Service of Summons, Judicial Council form POS-010 is mandatory. (Cal. Rules of Court, rule 1.31(a)-(b); Gov’t Code, § 68511.) Filing only part of the form does not comply with the California Rules of Court. It is further noted that “[f]orms adopted by the Judicial Council for mandatory use[, such as the Proof of Service of Summons] bear the words ‘Form Adopted for Mandatory Use,’ ‘Mandatory Form,’ ‘Form Adopted for Alternative Mandatory Use,’ or ‘Alternative Mandatory Form’ in the lower left corner of the first page.” (Id. at rule 1.31(c).) The document filed on June 29, 2026, does not bear these words.

Therefore, the proof of service filed on June 29, 2026 fails to comply with the minimum statutory requirements, and there is no presumption of proper service.

The court notes that plaintiff has filed and electronically served an extremely untimely opposition merely three court days prior to the hearing, leaving the moving party with no opportunity to reply. (Code Civ. Proc., § 1005, subd. (b) [papers opposing the motion must be filed no later than nine court days prior to the hearing].) While the court may exercise its discretion to disregard the late-filed opposition and intends to do so in any future late filings in this proceeding, the court will consider the opposition papers in this instance only.

Plaintiff indicates that defendant was personally served with the summons and first amended complaint, and argues that the service was proper, because the service was carried out through the San Francisco Sheriff’s Office, Civil Division. Plaintiff’s contentions are supported only by his own self-serving declaration and the same defective proof of service that was filed with the court on June 29, 2026. Notably, the proof of service plaintiff relies upon contradicts his allegation that the documents were personally served, since the document indicates that the defendant was served by substituted service. (Pacheco Decl., Ex.

A at ¶ 5b.) Further, plaintiff does not confirm whether the amended summons was served as opposed to the summons to the original complaint. Nor does plaintiff identify the actual person who purportedly effected the service. Therefore, plaintiff has not met his burden to prove that the service was valid.

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

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 8-30-26. (Judge’s initials) (Date)

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