2017-00222922-CU-PA
Donald Wirts vs. Daniel Fruge
Nature of Proceeding: Motion to Compel 1. Form 2. Special 3. Production
Filed By: Jaime, Matthew C.
The motion is DROPPED for defective service.
Moving party purportedly personally-served the moving papers on 12/18/2018, which,
counting backward from the date of hearing was only 13 court days. Moving party was required to personally-serve the moving papers 16 court days prior to the date of hearing. Defective service deprives the court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)
Moreover, the proof of service filed with the moving papers is not actually signed by the process server, such that it is not clear that Plaintiff was, in fact, personally served with the moving papers. (See e.g., 2 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2017) § 9:85.1-9:85.2, p. 9(I)-53 (“A declaration of personal service [of law and motion papers] is required by the person delivering the documents. [ . . .] [T]he proof of service must be signed by the messenger. A declaration signed by a secretary who gave the papers to the messenger is hearsay and is not sufficient. For the same reason, a declaration by the attorney (e.g., “I caused to be delivered by hand”) is likewise insufficient. If you are relying on personal service, the person who actually served the document must sign the proof of service.”) (emphasis in original).)