Judge: Douglas W. Stern, Case: 21STCV21301, Date: 2023-10-24 Tentative Ruling

Case Number: 21STCV21301    Hearing Date: October 24, 2023    Dept: 68

Motion to Quash Service of Summons

Mural Media, LLC 401K Plan vs. Linda J. Maultsby, et al., 23STCV21301

Moving Party: Defendant Linda J. Maultsby

Background

            This is an unlawful detainer action filed by Plaintiff Mural Media, LLC 401K Plan (Plaintiff).  Defendant Linda J. Maultsby (Defendant) filed this motion to quash service of summons pursuant to CCP §418.10 claiming that she was improperly served by mailing and posting.  She claims to have found a copy of the summons and complaint outside her door on September 9, 2023.  (Maultsby Decl., ¶ 2.)  She filed this motion on September 14, 2023.

As Plaintiff discusses in its Opposition, on September 25, 2023, Plaintiff filed a proof of service of summons indicating that Defendant was served on September 10, 2023, at her residence via substituted service.  The proof of service indicates that the process server made three attempts to personally serve Defendant at her residence, and on the third attempt, served an African American woman over 18 who answered the door to Defendant’s residence.  Afterwards, the process server mailed copies of the documents by first-class to Defendant’s residence on September 14, 2023.

Defendant claims in her reply that no one matching the description of the woman served by substitute service lives at her address, and that she is the only female member of her household and was not home on the date and time of substituted service.  (Maultsby Reply Decl., ¶ 5.)  Notably, Defendant’s reply does not state anywhere that she did receive service in the manner described in Plaintiff’s proof of service, only that the process server did not hand a copy of the summons and complaint to a competent member of her household.  (Reply, 4:21-22.)

Analysis

            CCP § 415.20(b) states as follows:

“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.”

Further, courts have held that substitute service, as described above, is allowed after 2 or 3 attempts at personal service.  (Kremerman v. White (2021) 71 Cal.App.5th 358, 373.)

            The proof of service filed by Plaintiff indicates that Defendant was served via substitute service on the third attempt at personal service.  This is a reasonable number of attempts by which to serve Defendant.  Additionally, a proof of service is prima facie evidence of the completion of service on Defendant.  (Evidence Code § 647 (“The 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”).)

            The only evidence that Defendant provides to rebut this presumption is her assertion in her Reply declaration that no person like the one described in the proof of service resides with her.  (Maultsby Reply Decl., ¶ 5.)  Defendant has not sufficiently rebutted the presumption of the facts contained in the proof of service.

            The Court denies Defendant’s motion to quash service of summons

Order

            Defendant’s motion to quash service of summons is DENIED.

            Defendant shall file a responsive pleading within 5 days of service upon her of notice of this Order.