Judge: H. Jay Ford, III, Case: 24SMCV03289, Date: 2024-11-12 Tentative Ruling

Case Number: 24SMCV03289    Hearing Date: November 12, 2024    Dept: O

  Case Name:  Rose v. King

SUBJECT:                MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:  Defendant Rachel King

RESP. PARTY:        Plaintiff Lawrence D. Rose, Trustee of the Rose Living Trust

TENTATIVE RULING

Defendant Rachel King’s Motion to Vacate Default is DENIED. Defendant was properly personally served on 7-16-24, and thus King’s argument to vacate default essentially based on lack of service is without merit.

Defendant Rachel King’s Motion to Quash Service of Summons is DENIED.  Defendant was personally served with the summons and complaint on 7-16-24. The Motion was not timely under CCP § 1167.

The stay on the enforcement of the writ of possession is vacated.  Plaintiff is to submit the proposed order.

REASONING

King seeks to vacate the default under CCP §§ 473(d), 473(b), 473.5.

CCP § 473(b) provides:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc., § 473, subd. (b).)

CCP § 473(d) provides:

The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

(Code Civ. Proc., § 473, subd. (d).)

CCP § 473.5(a) provides:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(Code Civ. Proc., § 473.5, subd. (a).)

A properly executed proof of service gives rise to a rebuttable presumption of proper personal service.  (See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441-1442.)

            Defendant Rachel King (“King”) argues that she was not personally served and submits a declaration stating that the “only papers I received were the Summons and Cohabitation Agreement (with no complaint) I found on the ground on July 16, 2024 at about 5:30 p.m. and a copy by mail.” (King Decl., ¶ 10.)

Plaintiff Lawrence D. Rose, Trustee of the Rose Living Trust (“Rose”) submits evidence that shows King was personally served on 7-16-24. (See Sallee Decl., ¶¶ 3–11; Ex. 1–3.) Rose includes a declaration from service processor Ryan Sallee (“Sallee”) in which Sallee declares that he encountered King in the backyard of her residence at 249 Glenroy Ave, Los Angeles, CA 90049 tending to the pool. (Id., ¶¶ 4–5.) Sallee declares he informed King that he had court paperwork for King, in which King responded that Sallee could not come onto the property. (Ibid.)  Sallee declares that he asked King “if she wanted me to leave the documents in the yard or at the gate. She responded by telling me to leave the documents under the garage, and again reiterated for me not to come on the property.” (Id., ¶ 5.) Sallee declares he left the paperwork at the gate, and took time stamped photographs of King by the pool and the documents left by the gate. (Id., ¶¶ 5–8; Ex. 2, 3.)

Thus, Rose has shown that a properly executed proof of personal service on King occurred on 7-16-24. (See Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 833 [holding the essence of personal service is the passing of the document from the hand of the process server into the hands of the defendant or the equivalent act in case the defendant refuses to take the same]; Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213 [“The individual upon whom the process server attempts to make personal service by manual delivery may not be heard to claim that service was improper because he refused to accept service”].) Sallee tried to personally serve the papers upon King, King refused, but King understood that the papers would be left at the front gate of her residence. The Court finds King was properly served on 7-16-24.

King does not include any persuasive evidence that she was not properly personally served.  King testifies she was in bed at the time of the service. (King Decl., ¶ 5.) This testimony lacks credibility. The credible evidence shows pictures of Rose at the time of service cleaning the pool in the backyard of her residence. (Sallee Decl., ¶ 6; Ex. 2.)  King’s only argument as to why the default should be set aside under CCP § 473(d) is that Rose was never validly served. The Court disagrees. King’s request to set aside the default pursuant to CCP § 473(d) is DENIED.

King also argues that the default was taken against her through mistake, inadvertence, surprise, or excusable neglect since she was not properly served, and thus the default should be vacated pursuant to CCP § 473(b).  Again, King’s argument lacks merit. King was personally served on 7-16-24. King provides no other evidence showing surprise, inadvertence, mistake or excusable neglect. Additionally, King’s attorney does not include an affidavit attesting to any  mistake of counsel. The only declaration provided stating any possible mistake or surprise is from King herself, and the declaration does not provide any persuasive evidence for the Court to find excusable neglect. Thus, King’s request to vacate the default judgment under CCP § 473(b) is DENIED.

Finally, the motion to set aside the default judgment under CCP § 473.5(a) is DENIED.   Again, Rose does not provide any credible evidence that she lacked actual notice of the complaint in time to defend this action or that such claimed lack of notice was not caused by her avoidance of service or inexcusable neglect.  

While the Court’s denial of King’s motion to vacate the default judgment is dispositive, the Court likewise finds Rose’s motion to quash lacks merit. Preliminarily, in an action for unlawful detainer, a motion to quash under Code Civ. Proc. § 418.10 must be filed and served within five days of service. (See Code Civ. Proc. § 418.10, subd. (a) [motion to quash must be made “on or before the last day of [defendant’s] time to plead,” which is 5 days in an unlawful detainer case per Code Civ. Proc. § 1167(a)]; Code Civ. Proc., § 1167, subd. (a) [after personal service “the defendant's response shall be filed within five days . . .”]

Again, Rose has shown that the unlawful detainer complaint was personally served on 7-16-24. The deadline to file a motion to quash was on 7-23-24. (See Code Civ. Proc., § 418.10, subd(a).) King filed the motion to quash on 8-15-24, which was twenty-three days after personal service. King did not follow the strict statutory procedures for unlawful detainer actions and thus the motion could be denied. (Stancil v. Superior Court (2021) 11 Cal.5th 381, 394–395 [“the statutory procedures must be strictly adhered to, including the stringent requirements for service, notice, and filing deadlines”].)  The Court finds King’s motion to quash is untimely under CCP §§ 418.10 and 1167(a).

In her motion, King challenges the Court’s “subject matter” jurisdiction over this action based on the perceived defective allegations of the complaint for unlawful detainer.  King is mistaken.

“[A] defendant may not use a motion to quash service of summons to dispute the truth of the allegations contained in an unlawful detainer complaint. Rather, a motion to quash under section 418.10, subdivision (a)(1) is a limited procedural tool to contest personal jurisdiction over the defendant where the statutory requirements for service of process are not fulfilled. In the unlawful detainer context, a defendant may contest personal jurisdiction where the five-day summons specific to unlawful detainer actions is not supported by a complaint for unlawful detainer. Such instances are unusual, and arise only where the summons is served alongside a complaint for a completely different cause of action (e.g., breach of contract) or a complaint that fails to allege the allegations necessary to assert the defendant is guilty of unlawful detainer as specified in the relevant subdivision of section 1161.”

(Stancil v. Superior Court (2021) 11 Cal.5th 381, 390. Emphasis added.) While a defendant may use a motion to quash in limited circumstances, “no defendant may use a motion to quash service of summons as a means of disputing the merits of the unlawful detainer complaint's allegations or to argue the plaintiff failed to comply with the pleading requirements specific to unlawful detainer actions.” (Id. at p. 391.)

King argues that the cohabitation agreement attached to the complaint shows there was no landlord tenant relationship between Rose and King. Under Stancil, however, that substantive challenge is not properly raised in a motion to quash. Notwithstanding the contractual obligations recited in the cohabitation agreement, the complaint does allege a landlord tenant relationship between Rose and King.  Specifically, in accord with Code of Civil Procedure §1161, Rose alleges: “On or about February 9, 2015 defendant Rachel King (1) agreed to rent the premises as a other tenancy: See Attachment 1. [Complaint Para. 6. A. (1)]; “The agreement was later changed as follows:  Current monthly rent totals $19,000.00 due on the 24th of each month.”] Para 6(d).].