Judge: Elaine Lu, Case: 22STCV02571, Date: 2022-10-24 Tentative Ruling

Case Number: 22STCV02571    Hearing Date: October 24, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

            On January 21, 2022, Plaintiffs Yolanda Sujey Pina Ramirez; Yonathan Efrain Rodriguez Pina, a minor, by and through his guardian ad litem, Yolanda Sujey Pina Ramirez; Jacqueline Rodriguez Pina, a minor, by and through her guardian ad litem, Yolanda Sujey Pina Ramirez; Jose Guadalupe Rodriguez Mederos; Lupita Rodriguez-Pina; Sujey Rodriguez Pina; Saul Alexander Lopez Morales; Ingrid Jeanneth Luna Ramirez; Jerry Estuardo Lopez Luna, a minor, by and through his guardian ad litem, Ingrid Jeanneth Luna Ramirez; and Alexis Yahir Lopez Luna, a minor, by and through his guardian ad litem, Ingrid Jeanneth Luna Ramirez (collectively “Plaintiffs”) filed the instant breach of habitability action against Defendant Lorena Gamboa (“Defendant”).

            On August 29, 2022, Defendant filed the instant motion to quash service of summons.  No opposition or reply has been filed. 

Legal Standard

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.”  (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152, [alterations in original].)  If service of process is insufficient a defendant may move to quash service of summons on or before the last day to plead in response to the complaint or within such further time as the court may allow for good cause.  (Code Civ. Proc. § 418.10(a)(1).)

When a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)  However, when there has been a filing of a proof of service by a registered process server, there is “a rebuttable presumption that the service was proper.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441) As explained by Evidence Code § 647, “[t]he return of a process server registered pursuant to … upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” 

“The 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.”  (Evid. Code, § 604.)

Discussion

Service of the Summons and Complaint

Defendant claims that Plaintiff has failed to properly serve her.

“Failure to give notice violates ‘the most rudimentary demands of due process of law.’”  (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 84.) Thus, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”  (Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961.)  Moreover, “compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. (§ 410.50.) “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.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440.)  This burden applies to all motions challenging service as long as “the motions have similar objectives, raise the same issues, and can serve the same purpose.”  (Id. at p.1440.)
            “It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper.”  (Id. at p.1441.)  “However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.”  (Id. at p.1442.)

Proper Methods of Service of Summons

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (CCP § 415.10.)  “A summons may be served by any person who is at least 18 years of age and not a party to the action.”  (Code Civ. Proc., § 414.10.)

Service may also be accomplished through substituted service.  Substituted service is a well-recognized method of service that has been held to satisfy the constitutional requirements of service.  (Korea Exch. Bank v. Yang (1988) 200 Cal.App.3d 1471, 1474.) 

Code of Civil Procedure section 415.20(a) provides, in relevant part:

In lieu of personal delivery of a copy of the summons and complaint to the person to be served . . . , 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, other than a United States Postal Service post office box, with the person who is apparently in charge thereof . . . . When Service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(a).) 

Code of Civil Procedure 415.20(b) further provides:

If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and of the complaint at such 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 . . . , 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 . . . to the person to be served at the place where a copy of the summons and of the complaint were left.” 

(CCP § 415.20(b).)  Two to three attempts at a proper place generally satisfy the requirement of reasonable diligence and allow substituted service.  (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185.) 

             Another method of service authorized by law is simply to mail the defendant copies of the summons and complaint, with a request to acknowledge receipt thereof.  (CCP § 415.30.)  However, “[s]ervice of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.”  (CCP § 415.30(c).)
            Finally, service may be completed by publication as a last resort pursuant to a Court order.  (CCP § 415.50; see Watts v. Crawford (1995) 10 Cal.4th 743, 749 [“If a defendant's address is ascertainable, a method of service superior to publication must be employed, because constitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort.”].)

A proof of service containing a declaration from a registered process server invokes a presumption of valid service that must be overcome by the party seeking to defeat service of process.  (American Express Centurion Bank, supra, 199 Cal.App.4th at p.390; see also Evid. Code § 647.)  Once facts are presented by the party seeking to defeat service, the trier of fact no longer assumes valid service but instead determines the fact of valid service based on the evidence presented.  (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.)  Evidence must be presented to show that the service did not take place as stated, as merely denying that service took place is insufficient to defeat the presumption.  (Ibid., [holding that denying the fact of service under oath is insufficient to overcome the presumption without further evidence].)

Evidence of Service in the Instant Action

Here, five proofs of service on Defendant have been filed.  The first proof of service filed on May 19, 2022, states that on May 15, 2022 at 12:15 pm, Defendant was served by substitute service on a Richard (Doe) a Co-Resident at 13454 Magnolia Blvd Sherman Oaks, CA 91423 (“Sherman Oaks Address”).  The second proof of service filed on June 29, 2022 states that on May 15, 2022 at 12:15 pm, Defendant was served by substitute service on a Richard (Doe) a Co-Resident at the Sherman Oaks Address.  The third proof of service filed on July 12, 2022, states  that on July 9, 2022 at 9:44 am Defendant was served by substitute service on a John Doe at 13701 Jouett St., Arleta CA 91331 (“Arleta Address”).  The fourth proof of service filed July 20, 2022, provides that on July 9, 2022 at 9:44 am Defendant was served by substitute service on a John Doe at the Arleta Address.  Finally, after Defendant filed the instant motion, Plaintiff filed a fifth proof of service on October 20, 2022 stating that on October 7, 2022 at 8:28 am Plaintiff was served by substitute service on John Doe at the Sherman Oaks Address.

Through the instant motion, Defendant seeks to quash the fourth proof of service.  The fourth proof of service was served by Raphael Miravete, a registered processes server.  Thus, the presumption of proper service applies.

Defendant states that she has not been personally served.  (Gamboa Decl. ¶ 7.)  Defendant states that “contrary to the [Fourth Proof of Service], the Plaintiff is yet to effect service on the Defendant because [Defendant] do[es] not live at the address stated in the [Fourth Proof of Service] and have not authorized the described John Doe or anyone in stated location to receive court processes on [Defendant’s] behalf.”  (Gamboa Decl. ¶ 6.)  Defendant also states that she regular checks her mail delivered to her address and has not received any summons and complaint in the mail.  (Gamboa Decl. ¶¶ 9-10.)  As no opposition has been filed, the Court finds that this is sufficient to overcome the presumption that service was proper.

Accordingly, Defendant’s motion to quash the fourth service of summons is GRANTED.  However, the Court notes that a fifth proof of service has been filed, which is unaffected by the instant motion. 

If Defendant files a future motion to quash, Defendant’s declaration as attached to the instant motion will likely be deemed insufficient.  Defendant must provide additional evidence affirming that Defendant does not reside at the purported address, such as utility bills, rental agreement, etc.  (See Palm Property Investments, LLC, supra, 194 Cal.App.4th at p.1428.)  Similarly, if Plaintiff wishes to establish service, Plaintiffs must provide evidence connecting Defendant to the address where substitute service has been effected.

Conclusion and ORDER

            Based on the foregoing, Defendant Lorena Gamboa’s motion to quash service of summons is GRANTED as to the fourth proof of service of summons.  The fifth proof of service filed on October 20, 2022 is unaffected by the instant order.

Plaintiffs are to provide notice of this order and file proof of service of such.

DATED: October 24, 2022                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court