Judge: Deirdre Hill, Case: 221TRCV00942, Date: 2023-01-18 Tentative Ruling

Case Number: 221TRCV00942    Hearing Date: January 18, 2023    Dept: M

Hearing Date:                         January 18, 2023

Moving Parties:                      Defendants Michelle Dupont

Responding Party:                  Plaintiff Ralph-Gibson Community Property Trust

Motion to Quash Service of Summons

The court considered the moving and opposition papers.

RULING

            The motion is DENIED.  Defendant is ordered to file a responsive pleading within five days.

BACKGROUND

            On October 5, 2022, plaintiff Ralph-Gibson Community Property Trust dated September 25, 1998, Jon D. Ralph and Patricia L. Gibson, as trustees filed a complaint for unlawful detainer against Michelle Dupont based on a three-day notice to pay rent or quit for 3007 The Strand, Hermosa Beach, CA 90254 based on monthly rent of $3,575 for the period April 1, 2022 through September 30, 2022.

LEGAL AUTHORITY

CCP §418.10 states:  “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”  This section provides the exclusive procedure for challenging personal jurisdiction at the outset.  Roy v. Superior Court (2005) 127 Cal. App. 4th 337, 342.  Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist.  Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

Under Evidence Code § 647, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  Under Evidence Code § 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.  Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

CCP §415.20(a) states, “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 416.10, . . . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, . . . with the person apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. . . .”

CCP §415.20(b) states, “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.”

DISCUSSION

            Defendant Michelle Dupont (self-represented) requests that the court quash service of the summons and complaint on the ground that she was not properly served.

            The proof of service filed on October 25, 2022, indicates that defendant was personally served by a registered process server on October 23, 2022, at 4:05 p.m.  She is described as female, age 40, 5’7”, 110 lbs., white, and black hair.

            Defendant states in her declaration that on October 23, 2022, she discovered a summons near her home but not posted on the door.  She states that she was not personally served a summons and complaint. 

            In opposition, plaintiff argues that defendant was properly served by a registered process server and a valid proof of service of summons was executed by the process server.

            The court finds that defendant was properly served, and that defendant has not rebutted the presumption that she was validly served.  The proof of service indicated a description of defendant.  She has not refuted the physical description or provided any evidence that she was someplace other than at the property on October 23, 2022 at 4:05 p.m.

The motion is DENIED.

Plaintiff is ordered to give notice of the ruling.