Judge: Andrew E. Cooper, Case: 24CHCV02810, Date: 2024-09-17 Tentative Ruling

Case Number: 24CHCV02810    Hearing Date: September 17, 2024    Dept: F51

MOTIONS TO QUASH SERVICE OF PROCESS

Motions Filed: 8/9/24, 8/20/24

MOVING PARTY: Defendant Paul Antieri, in pro per (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs Zion Bitan; and Michael Ross (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiffs’ service of their Complaint and Summons on Moving Defendant.[1]

TENTATIVE RULING: The motions are denied.

BACKGROUND 

This is an unlawful detainer action, which Plaintiffs allege that on 5/12/23, at an auction sale, they purchased certain real property located at 33247 Escondido Drive, Agua Dulce, CA 91390. (Compl. ¶¶ 5, 8.) Plaintiffs allege that “since the date of said foreclosure sale, and continuing to the present day, the Defendants have occupied the Property without the consent or authorization of Plaintiffs.” (Id. at ¶ 10.) On 8/2/24, Plaintiffs filed their unlawful detainer complaint against two named defendants.

On 8/9/24 and 8/20/24, Moving Defendant filed the instant motions to quash. On 8/21/24, Plaintiffs filed a proof of service indicating that Moving Defendant was served with process via substitute service at 10:34 AM on 8/14/24. On 9/10/24, Plaintiffs filed their opposition. No reply has been filed to date.

ANALYSIS

A defendant may move, “on or before the last day of his or her time to plead,” to quash the service of summons by alleging a lack of personal jurisdiction, or to dismiss the action on the ground of inconvenient forum. (Code Civ. Proc. § 418.10, subd. (a).) A motion to quash must be granted if the court finds that either (1) there is no basis for exercising personal jurisdiction over the defendant or (2) service on the defendant was improper. (Ziller Elecs. Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.)

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (Code Civ. Proc. § 415.20, subd. (b).)

“The return of a [registered] process server … establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code § 647.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) However, “once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant.” (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.)

Here, the proof of service submitted by Plaintiffs indicates that the summons and complaint were served by a registered process server, via substitute service, on 8/14/24, at 10:34 AM, on a co-occupant named John Antieri, described as Male; Age 60s; 5’7”; 200+ lbs; Dark Hair; with Glasses; at 33247 Escondido Drive Agua Dulce, CA 91390. (8/21/24 POS, ¶¶ 4, 5b.) Copies of the complaint and summons were also mailed to Moving Defendant. (Id. at p. 4.)

Moving Defendant argues that the service was defective because “Plaintiff did not file an affidavit of due diligence in the court nor did Plaintiff request an order for posting.” (Def.’s Mot. 4:15–16.) Moving Defendant further declares that “on August 14, 2024, I found the Summons and Complaint on road in front of my gate. Plaintiff made no attempt that I am aware of to serve me personally.” (8/20/24 Decl. of Paul Antieri ¶¶ 2–3.)

The Court notes, however, that the proof of service filed by Plaintiffs contains a signed declaration of diligence, stating that the process server made several unsuccessful attempts to serve Moving Defendant on 8/4/24, 8/6/24, 8/8/24, 8/10/24, and 8/12/24, before effectuating substitute service on 8/14/24. (8/21/24 POS, p. 3.) The Court finds that Moving Defendant’s contentions that he was not properly served are insufficient to rebut the presumption that the 8/14/24 substitute service was proper. The Court further notes that Plaintiffs intend to call the process server as a witness to testify on the issue at hearing. Accordingly, the motions to quash are denied.

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CONCLUSION 

The motions are denied.