MOTION TO QUASH SERVICE OF SUMMONS
June 2, 2026 Law and Motion Calendar PAGE 26 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 13 25-CIV-06521 FELICITO H. DESUASIDO, ET AL. VS. GENEVIEVE GALVEZ DESUASIDO
FELICITO H. DESUASIDO MICHELLE L. ZACCONE GENEVIEVE GALVEZ DESUASIDO ANDREW C. MCCLELLAND
MOTION TO QUASH SERVICE OF SUMMONS (Code Civ. Proc., § 418.10 – Special Appearance Only)
TENTATIVE RULING:
The Motion of Cross-Defendant Alexander V. Desuasido (“Alvin”) to Quash Service of Summons is GRANTED. Due to the fact that the parties have the same last names, the court uses the parties’ first names and means no disrespect.
The Notice of Hearing fails to include the date, time, and the department for the hearing. It appears that the court provided this information after Alvin filed the Motion. The Notice also fails to state the address for Department 4, which is located at 400 County Center, Redwood City, Department 4, Courtroom 4C. Alvin is directed to include this information in any future notice of hearing.
As a procedural matter, Genevieve first argues that this Motion is moot because it re-served Alvin thereafter. (McClelland Decl., ¶ 6, and Exh. D, Proof of Service filed April 15, 2026.) However, Genevieve also argues in opposition to this Motion that the original January 9, 2026 service was proper. As a result, the court finds that this Motion is not moot.
The proof of service states that Alvin was served on January 9, 2026 according to Business and Professions Code section 17538.5, subdivision (d)(1), by serving Loly Villazon as manager of the private mail receiving facility and agent for service. (McClelland Decl., Exh. C.) The proof of service is signed under declaration of penalty of perjury by a registered process server. (Ibid.) A declaration of mailing by the mail facility further states that the document were mailed to Alvin on January 12, 2026. (Ibid.)
Alvin challenges service of the summons and complaint by Cross-Complainant Genevieve Desuasido (“Genevieve”) as claimed in the January 2026 proof of service. Alvin argues that no certificate of mailing has been provided, and he did not receive any mailed copy of the Cross- Complaint at any residence or personal address. (See Alvin’s Decl.)
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A defendant may move to quash service of summons on the ground that the court lacks jurisdiction over him or her. (Code Civ. Proc. § 418.10, subd. (a).) Without valid service of summons, the court never acquires jurisdiction over the defendant. (Kremerman v. White (2021) 71 Cal.App.5th 358, 371 (Kremerman).) Where a defendant challenges the court’s personal
June 2, 2026 Law and Motion Calendar PAGE 27 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ jurisdiction based on improper service of process, it is the plaintiff’s burden to prove the existence of jurisdiction by proving facts requisite to an effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The filing of a proof of service by a registered process server creates a rebuttable presumption that service was proper. (Chinese Theater, LLC v.
Starline Tours USA, Inc. (2025) 115 Cal.App.5th 1048, 1059, citing Evid. Code, § 647.) “The 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.” (Evid. Code, § 647.) This rebuttable presumption affecting the burden of producing evidence is merely a preliminary assumption in the absence of contrary evidence. (Chinese Theater, supra at p. 1059.)
The process server’s return may be impeached by contradictory evidence. (Ibid.)
If the only address reasonably known for a person to be served is a private mailbox obtained through a commercial mail receiving agency (“CMRA”), then service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the CMRA in the manner set forth in Business and Professions Code section 17538.5. (Code Civ. Proc., § 415.20, subd. (c).) Business and Professions Code section 17538.5, subdivision (d), provides in relevant part:
(d)(1) Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement.
Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer's mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer.
The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing. ...
(Bus. and Prof. Code, § 17538.5, subd. (d)(1).)
Since the January 2026 proof of service is signed by a registered process server, a rebuttable presumption is created that the service was proper. Alvin however, states that he did not receive a mailed copy of the Cross-Complaint at any residence or personal address and he has not been provided with a United States Postal Service certificate of mailing. (Alvin’s Decl.) While
June 2, 2026 Law and Motion Calendar PAGE 28 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Genevieve provides a copy of a declaration of mailing by the CMRA stating that the summons and Cross-Complaint were mailed to Alvin on January 12, 2026, it does not include a certificate of mailing. (McClelland Decl., Exh. C.)
In Kremerman, supra, 71 Cal.App.5th at pp. 373-374, the record showed that the CMRA employee did not mail the documents to the defendant within the required five-day time period under section 17538.5(d)(1). Instead, the employee mailed it twenty days after receipt of the documents. (Id., at p. 374.) The Court of Appeal found that the trial court erred when it concluded service was proper, and the trial court did not obtain personal jurisdiction over the defendant due to improper service of the summons and complaint. (Ibid.)
This situation pertains to the certificate of mailing rather than mailing the documents within the required five-day time period. Nevertheless, Kremerman is persuasive that strict compliance with the statutory requirements under section 17538.5(d)(1) is required for the court to obtain jurisdiction over a defendant. Since the Legislature required that the CMRA shall obtain a certificate of mailing in connection with the documents and that service is then effectuated ten days after such mailing, the failure to provide a certificate of mailing and Alvin’s Declaration that he did not receive mailed documents at his residence or personal address are sufficient to rebut the presumption that he was properly served.
Accordingly, the Motion is GRANTED. Service of the summons and complaint as stated in the proof of service filed January 12, 2026 is hereby QUASHED.
The court notes that a second motion to quash service of summons by Alvin is scheduled for August 4, 2026 pertaining to a second proof of service filed April 15, 2026.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Alvin shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.