Judge: Deirdre Hill, Case: 23TRCV00279, Date: 2023-03-27 Tentative Ruling

Case Number: 23TRCV00279    Hearing Date: March 27, 2023    Dept: M

Hearing Date:                         March 27, 2023

Moving Parties:                      Defendant Todd Barton

Responding Party:                  Plaintiff James R. Nyman, trustee of the Janco Trust

Motion to Quash Service of Summons

The court considered the moving and opposition papers and prejudgment claim of right to possession.

RULING

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

BACKGROUND

            On January 31, 2023, plaintiff James R. Nyman, trustee of the Janco Trust, filed an unlawful detainer complaint against Karl Gist aka Karl Geist based on a three-day notice to pay rent or quit at the property located at 1920 Vanderbilt Lane, Redondo Beach.

            On February 9, 2023, the court granted plaintiff’s application for order to post.

            On February 24, 2023, Todd Barton filed a prejudgment claim of right to possession.

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.”

Under CCP §1162, “(a) Except as provided in subdivision (b), the notices required by Sections 1161 and 1161a may be served by any of the following methods:

(1) By delivering a copy to the tenant personally.

(2) If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence.

(3) If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy 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.  Service upon a subtenant may be made in the same manner.”

DISCUSSION

            Defendant Todd Barton (self-represented) requests that the court quash service of the summons and complaint on the ground that plaintiff “has only posted a copy of the summons and complaint in the door, completely failing to serve the defendant.”

            In opposition, plaintiff argues that defendant was properly served by posting and mailing.  The court notes that on February 9, 2023, the court granted plaintiff’s application to post and mail in accordance with CCP §1162.  Although not filed, plaintiff attaches a proof of service of summons to plaintiff’s counsel’s declaration indicating that “Karl Gist aka Karl Geist” was served by posting and mailing by certified mail on February 13, 2023 by a registered process server.

            Whether defendant Barton was properly served, the motion is moot as defendant Barton filed a prejudgment claim of right to possession, which indicates that the date of service was February 13, 2023.  Further, the prejudgment claim of right of possession, which Barton signed under penalty of perjury, states that “I understand that if I make this claim of possession, I will be added as a defendant to the unlawful detainer (eviction) action.”  It also states that “I understand that I will have five days (excluding court holidays) to file a response to the Summons and Complaint after I file this Prejudgment Claim of Right to Possession form.”  Also, there is no proof of service as to unnamed occupants; thus, there is no proof of service to quash.

The motion is DENIED.

Plaintiff is ordered to give notice of the ruling.