Penaloza v. Brand

(49) Tentative Ruling

Re: Penaloza v. Brand Superior Court Case No. 25CECG05491

Hearing Date: June 3, 2026 (Dept. 403)

Motion: By Defendant Elaine Brand to Quash Summons

Tentative Ruling:

To grant. Plaintiffs are to serve Defendant within 30 days. (Code Civ. Proc., § 415.20, subd. (b).)

Explanation:

Defendant Elaine Brand (“Defendant”) moves to quash the summons by Maria Penaloza and Juan Jocobo (“Plaintiffs”) due to ineffective service. On April 1, 2026, a proof of service of summons was filed indicating that on May 25, 2026, substitute service was effected on Defendant by a registered process server.

Under Evidence Code section 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.) Thus, “‘if the notice was served by a registered process server, plaintiff may take advantage of a statutory presumption: The registered process server's proof of service can be introduced as a business record, thereby creating a presumption affecting defendant's burden of producing evidence. [¶] If defendant does not introduce rebuttal evidence, the trier of fact must find for plaintiff in accordance with the presumption.

Conversely, the presumption is dispelled by defendant's introduction of rebuttal evidence, and the burden shifts back to plaintiff to put the person who served the notice on the stand to testify to proper service.’” (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427, internal citations omitted.) Here, declaration of the process server in the proof of service is enough to establish a rebuttable presumption that service was completed as described in the declaration.