Coulston v. Cooper

BISHOP, J. pro tem.

*

This is an action for $500,000 actual damages, a like sum for punitive damages, and, in addition, unspecified sums for special damages, because of injuries received by plaintiff while a passenger in an automobile owned by defendant National Auto Rental, being driven by defendant Cooper, who had rented it from the owner. The ease comes to us on an appeal by the plaintiff from an order quashing service of summons on the defendant-respondent National Auto Rentals. We are affirming the order.

Not much progress has been made by the plaintiff along the road to the million dollar judgment he seeks. Up to the filing of the notice of motion to quash, all that had been done, according to the record before us, was the filing of the complaint and the issuance and service of summons. All we know about the last two events we find in the declaration made by respondent’s president and filed in support of its motion where he states: “On February 13, 1964, a copy of the Summons and Complaint in the above case was received by National Car [sic] Rental by Certified Mail addressed to National Car [sic]

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Rental, 1024 S. 24th Street, Phoenix, Arizona. No other copy of said Summons and Complaint has been served upon any officer or agent of National Car [sic] Rental so far as known to declarant. ’ ’ As far as we are aware, no further or other service has taken place. This is the service quashed by the order under appeal.

A defendant who takes the position that the service of summons as made upon him did not bring him within the jurisdiction of the court, may serve and file a notice of motion to quash the service. (§ 416.1, Code Civ. Proc.) The effect of such a notice is to place upon the plaintiff the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.

(Holtkamp

v.

States Marine Corp.

(1958) 165 Cal.App.2d 131, 137 [331 P.2d 679, 683];

Atkins, Kroll & Co.

v.

Broadway Lumber Co.