Judge: Deirdre Hill, Case: 22TRCV00836, Date: 2023-01-31 Tentative Ruling

Case Number: 22TRCV00836    Hearing Date: January 31, 2023    Dept: M

Hearing Date:                         January 31, 2023

Moving Parties:                      Defendant Devin Kelly

Responding Party:                  Plaintiff 211 Crystal Cove Apts LLC

Motion to Quash Service of Summons

The court considered the moving and opposition papers.

RULING

            The motion is GRANTED.

BACKGROUND

            On September 26, 2022, plaintiff 211 Crystal Cove Apts LLC filed a UD complaint against Devin Kelly based on three-day notices to pay rent or quit for 211 Yacht Club Way, Unit no. 327, Redondo Beach, CA 90277 for notices demanding rent for November and December 2021 and January, February, and March 2022 and April and May 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 Devin Kelly (self-represented) requests that the court quash service of the summons and complaint on the ground that he was not properly served.

Defendant asserts that on September 27, 2022, at 5:00 p.m., he found a copy of the summons and complaint taped to his door.  On October 6, 2022, at 9:49 p.m., he found another set of summons and complaint taped to his door.  He states in his declaration that to his knowledge, nobody has attempted to serve him since that time.  Defendant also argues that plaintiff failed to comply with CCP §415.45 by exercising reasonable diligence in attempting to personally serve him.

In opposition, plaintiff argues that the motion is moot because the motion seeks to quash service declared prior to October 5, 2022. 

The court notes that no proof of service was filed prior to when the motion was filed.  Plaintiff filed a proof service on October 28, 2022 indicating that defendant was personally served on October 6, 2022 at 8:25 a.m. by a registered process server.

Although the proof of service was filed after defendant’s motion to quash, both parties discuss October 6 as the date of purported service.  Defendant claims he found the summons and complaint taped to his door and the proof of service indicates that he was personally served.

Plaintiff contends that after multiple attempts at personal service, the registered process server concluded that defendant was at the premises on October 6, 2022, at 8:25 a.m. as he could hear sounds coming from inside and evading service.  Plaintiff asserts that the process server “loudly announced service on the” defendant and left a copy of the summons and complaint on the front door and thereafter mailed copies to the residence address.

The court further notes that there is no declaration from the registered process server attesting to what plaintiff argues in the opposition.

The court finds that defendant was not properly served with the summons and complaint as plaintiff acknowledges that it was taped to the door, which is not personal service under the code.  The court reaches this conclusion notwithstanding the cases set forth in its opposition, as the process server could not have known who was inside the apartment when service was purportedly made.

The motion is therefore GRANTED.

Plaintiff is ordered to give notice of the ruling.