Judge Christian R. Gullon, Case Number: 23PSCV00022, Date: 2023-08-16 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00022, Date: 2023-08-16 Tentative Ruling

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This is a wrongful eviction case. Plaintiff JORGE A. SANTIAGO[1] alleges that Defendant GEORGE ZUECK wrongfully evicted Plaintiff during the COVID-19 pandemic in violation of the Los Angeles Eviction Moratorium.

On August 7, 2023, Plaintiff filed an opposition to Defendant’s reply to motion to quash service of summons.

Defendant brings forth the motion pursuant to CCP section 418.10(a)(1). (Notice of Motion p. 2, see also Motion pp. 2-3.)

Code of Civil Procedure Section 418.10(a)(1) provides that a defendant may move to quash service of summons for lack of jurisdiction at any time before the last day to file a responsive pleading. A Motion to Quash under Code of Civil Procedure section 418.10 is the “procedural device used to test the validity of improper service.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal. App.3d 1118, 1124). “When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439.)

Defendant avers that he did not receive personal service of the summons and complaint because (i) he was not home at the time he was purportedly served and (ii) the physical description of the individual as explained on the proof of service is different than Defendant. More specifically, Defendant explains (and files a declaration) stating that:

i. The process server claims to have served a 40 plus year old male, but Defendant is in his sixties.

ii. The process server claims to have served a male with black hair, but Defendant has grey hair.

iii. The proof of service indicates that a male was served at 6:25 p.m. at the home address, but Defendant has a nightly walk around Mission Viejo Lake between 6:00 p.m. and 7:00 p.m; therefore, he was not home at 6:25 PM.[2]

In Opposition, Plaintiff, without citation to legal authority, avers that service was proper.

Here, the court finds that service was improper. The court turns to American Express as it is an instructive case wherein the proof of service provides an individual with different descriptors than the named defendant was served.[3] In American Express, the proof of service stated that the process served “Robert V. Zara party in item 3.a., Asian, Male, 65 Years Old, Black Hair, Brown Eyes, 5 Feet 6 Inches, 160 Pounds” at “435 Rosewood Ave San Jose, CA 95117 . . . by personal service . . . Sat., Jan. 30, 2010(2) at: 6:43PM.” (American Express, supra, 199 Cal.App.4th 383 at pp. 387-388.) The defendant filed a motion to quash by submitting a declaration stating that he was (i) not Asian, (ii) does not have black hair as he has “mostly graying hair, although colored light brown for the last 5 years, to disguise the gray”; (iii) no members of the household who fit that description live in the household, (iv) that he has lived alone as the sole member of his household for at least the last ten years, (v) that there were no other competent members of his household who could have competently received the complaint and summons, and (vi) he returned home at 8PM on January 31, 2010, therefore making personal service impossible. (Id.) The appellate court, concluding that the proof of service was false, did so based upon the following reasoning:

[T]he proof of service on its face indicates that the process server did not comply with the rules governing service. It shows personal service upon defendant himself and describes defendant as an Asian with black hair, a description that does not fit defendant. The proof of service was therefore untruthful. Alternatively, the proof of service does not show personal service upon defendant by leaving a copy with someone other than defendant together with some indication that such person was authorized to accept service on defendant's behalf. The proof of service therefore cannot be construed as attesting to authorized-agent personal service. In the absence of evidence from the process server, the uncontradicted evidence is that the process server did not personally serve defendant.

Here, similar to American Express wherein the defendant provided evidence that he looked different than the description on the proof of service, here, Defendant declares that he is of different age and hair color. While the process server need not have determined with precision the individual’s descriptors, a variance of about 20 years in age and difference in hair color are too stark of differences to overlook.[5]

Therefore, even if service of process statutes should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, here, there are serious doubts as to whether Defendant was served. (See Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778 [wherein the court concluded that the service of process statutes should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant].)

[1] Plaintiff is pro per.

[2] When Defendant arrived home after his walk after 7:00 p.m., he found a document that said Summons, sitting on his doorstep. (Motion p. 5, see also Zueck Decl. ¶5.) That said, “Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392.

[3] Though the motion cites to American Express, it was not analyzed, but the court provides an analysis as it is the most instructive case based upon the court’s research.

[4] Also, in American Express, the appellate court appeared to find more reason that the proof of service was false based on the defendant’s physical descriptions during the motion hearing. (Id. at fn. 2 [“[T]he trial court and plaintiff did not contradict this aspect of defendant's declaration when they saw defendant at the motion hearing.”].)

[5] The court notes that the proof of service of summons also indicates that the person served was 6 feet, weighs 180 pounds, and is Middle Eastern, but Defendant’s motion and declaration do not address these descriptors. Additionally, Defendant’s attorney, Neil J. Cacali’s declaration provides that Defendant’s appearance “is more consistent with that of an individual in his 60’s based upon his jaw line. His hair color would be more properly described as grey.” (Cacali Decl., ¶6). Thus, based upon Defense Counsel’s declaration, Defendant’s face (i.e., texture, elasticity, etc.) may not indicate Defendant is 60 and his hair is not obviously grey but better described as grey. That said, as Plaintiff does not take issue with the physical descriptors and Defendant declares under the penalty of perjury that he was not home at the time of the service, the court finds the arguments sufficient.

[6] Plaintiff in sur-opposition, which is an improper filing, states that he would not stipulate to setting aside the default.