Judge: Gary I. Micon, Case: 24CHCV00365, Date: 2024-04-25 Tentative Ruling

Case Number: 24CHCV00365    Hearing Date: April 25, 2024    Dept: F43

Dept. F43

Date: 4-25-24

Case #24CHCV00365, John Labidi vs. Don Bratton

Trial Date: N/A

MOTION TO QUASH SERVICE OF SUMMONS, ETC.

MOVING PARTY: Defendant Don Bratton

RESPONDING PARTY: Plaintiff John Labidi

RELIEF REQUESTED

Defendant has requested that the Court quash the service of summons.

RULING: Motion is denied.

SUMMARY OF ACTION

This is an unlawful detainer case filed on February 5, 2024. Plaintiff John Labidi (Plaintiff) alleges that Defendant Don Bratton (Defendant) is continuing to live in a rental property owned by Plaintiff despite having rent past due in an amount over $50,000. When this action was commenced, the process server made five attempts to serve Defendant personally at the rental property where Defendant has been living. The process server represents that Defendant’s vehicle was in the driveway on one occasion, and on another day Defendant actually spoke to the process server but refused to open the door. Defendant told the process server to get out of there and not to come back.

On February 23, 2024, Plaintiff filed an application to serve the process by posting, which the Court granted on February 28, 2024. On March 7, 2024, a registered process server posted the summons and complaint on Defendant’s door and sent a copy via certified mail to Defendant.

Plaintiff represents in his opposition that the day after the posting, Defendant’s attorney contacted Plaintiff’s attorney and offered to accept service on behalf of Defendant. Plaintiff’s attorney then provided Defendant’s attorney with a copy of the proof of service. In response, Defendant’s counsel inquired about a date for response to the complaint. Plaintiff’s attorney told him that it was the time granted by statute. After Defendant’s attorney request for more time to respond to the complaint was rebuffed, Defendant filed this motion to quash service of summons on March 15, 2024.

Defendant has not filed a reply to Plaintiff’s opposition.  

ANALYSIS

The return of process is prima facie evidence of proper service. (Evidence Code § 647; Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) Where proof of service exists, the burden is then on the other party to produce evidence that they were not, in fact, served. (See Evidence Code § 604; Palm Property Investments, LLC v. Yadegar 194 Cal.App.4th 1419.) Simply denying receipt of service is not sufficient to overcome the presumption of service. (Palm Property, 194 Cal.App.4th at 1428.)

In his motion, Defendant denies that the five attempts were made to serve him with process, citing CCP § 415.45(a). However, included with Plaintiff’s application to serve summons by posting for unlawful detainer was a declaration of due diligence from process server Carlos Canas. That declaration detailed each of the process server’s five attempts to personally serve Defendant. Defendant simply denying that these attempts were made is not sufficient to overcome the declaration and presumption of service.

Motion to quash service of summons is denied.

Moving party to give notice.