Judge Daniel M. Crowley, Case Number: 23STCV8166, Date: 2024-04-05 Tentative Ruling

Specially Appearing Defendant Andre Costa (“Costa”) (“Specially Appearing Defendant”) moves to quash Plaintiff Hollywood 180 Holdco, LLC’s (“Hollywood 180”) (“Plaintiff”) service of summons upon it, or in the alternative, strike the Complaint, on the grounds Plaintiff failed to serve the three-day notice of quit or pay rent. (Notice Quash, pgs. 1-2.)

Plaintiff filed the operative Complaint for unlawful detainer (“UD”) on November 16, 2023. On January 23, 2024, this Court granted Plaintiff’s application for order to serve summons by posting for unlawful detainer at the property located at 1619 N. La Brea Avenue #307, Los Angeles, CA 90028. (1/23/24 Application for Order to Post.) On March 20, 2024, Plaintiff filed a proof of service of summons and notice of ODR-UD by posting a copy of the documents and mailing a copy on March 2, 2024, at 6:35 am to the abovementioned address. (3/20/24 POS.)

Costa filed the instant motion on March 8, 2024. Plaintiff filed its opposition on March 27, 2024. As of the date of this hearing no reply has been filed.

“A defendant, on or before the day of his or her time to plead . . . may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (C.C.P. §418.10(a)(1).) By filing such motion, “a defendant makes a special appearance for the narrow purpose of contesting personal jurisdiction where the summons is defective.” (Stancil v. Superior Court (2021) 11 Cal.5th 381, 393.)

“[A]n unlawful detainer defendant may properly file a motion to quash to contest a summons. The accelerated five-day summons required under section 1167 is applicable only in unlawful detainer cases. So where the summons instructs the defendant to respond in five days but is not accompanied with a complaint for unlawful detainer, the summons is improper and may be challenged via a motion to quash. A complaint that fails to even allege the defendant is guilty of unlawful detainer, as defined in the relevant subdivision of section 1161, cannot support the five-day summons exclusive to unlawful detainer cases. In those limited circumstances, which we expect to arise infrequently, an unlawful detainer defendant may choose to use a motion to quash to challenge the summons as improper. (Id. at pgs. 400-401.)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.” (Floveyer International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793; see also Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961 [“To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.”].) “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.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160, internal quotations omitted.)

Proper service of a three-day notice to quit or pay rent (C.C.P. §1162; Civ. Code §1946) is an essential prerequisite to a UD judgment awarding possession to the landlord and must be alleged in the complaint: The complaint must “[s]tate specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based.” (C.C.P. §1166(a)(5); see Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 611; Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425; Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513.)

(a) A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication and that:

(1) A cause of action exists against the party upon whom service is to be made or he is a necessary or proper party to the action; or

(2) The party to be served has or claims an interest in real property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property.

(b) The court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address.

(d) Notwithstanding an order for posting of the summons, a summons may be served in any other manner authorized by this article, except publication, in which event such service shall supersede any posted summons.

Costa’s argument that he was not properly served by Plaintiff on the basis that he was out of the state on the day the three-day notice and summons were posted on his door is unavailing and not supported in his motion by case law.

Personal service may be effectuated pursuant to C.C.P. §1162(a)(3) if a person of suitable age or discretion cannot be found at a tenant’s place of residence by affixing a copy of the three-day notice in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. (C.C.P. §1162(a)(3).) Service of a summons in this manner is deemed complete on the 10th day after posting and mailing. (C.C.P. §415.45(d).) 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, the presumption arises only if the proof of service complies with the applicable statutory requirements. (Id., citing Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Plaintiff filed its Application and Order to serve Summons by Posting for UD on January 10, 2024, attaching a Non-Service Report of attempted personal service. The Order was signed on January 23, 2024, by Commissioner Latrice G. Byrdsong. The Summons and Complaint were thereafter served on March 2, 2024. Proof of Service was filed on March 20, 2024.

Plaintiff met its burden to prove the existence of jurisdiction by proving the facts requisite to an effective service. (See Lebel, 210 Cal.App.4th at pg. 1160.) Accordingly, Costa’s motion is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court