Judge: John J. Kralik, Case: 22BBCV00407, Date: 2023-03-17 Tentative Ruling

Case Number: 22BBCV00407    Hearing Date: March 17, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Borden Business Properties, LLC (“Plaintiff”) filed an unlawful detainer complaint against Defendant Summit Medical Supply Corp. (“Defendant”) on June 2, 2022.  Plaintiff is the owner of the property located at 9313 Borden Ave., Sun Valley, CA 91352.  Plaintiff alleges that it entered into a written lease agreement with Defendant on July 7, 2016.  Plaintiff alleges that it served on Defendant a 3-day notice to pay rent or quit on May 12, 2022.  Plaintiff seeks possession of the premises, costs incurred in this proceeding, past due rent of $84,008.40, reasonable attorney’s fees, forfeiture of the agreement, and damages at the rate of $233.35 per day since May 13, 2022.

B.     Relevant Background

On June 27, 2022, the default of Defendant and unknown occupants was entered.

On June 27, 2022, the default judgment of Defendant was entered by the clerk of the Court in favor of Plaintiff for possession of the premises located at 9313 Borden Ave., Sun Valley, CA 91352. 

On January 27, 2023, the Court signed the Stipulation and Order to Set Aside the Default and Extension of Time to Plead by February 6, 2023.

C.     Motion on Calendar

On February 6, 2023, Specially Appearing Defendant Summit Medical Supply Corp. (“Defendant”) filed a motion to quash service of summons. 

DISCUSSION

A.    Proof of Service

The proof of service of the summons (filed June 23, 2022) states that Defendant was served on June 8, 2022 at 11:23 a.m. by leaving the documents with John “Doe” – person in charge of business (Male, Caucasian, 5’9”, 220 lbs., 45 years old, and brown hair) at 9313 Borden Ave., Sun Valley, CA 91352 (business).  Adam Delomonte is identified as the agent for service of process.  The documents were thereafter mailed on June 8, 2022.  Service was effectuated by Steve Smith, a registered California process server.

B.     Discussion of Merits

Defendant moves to quash the service of the summons, arguing that it was not in possession of, nor present at the subject commercial property, during the period of time relevant to the allegations stated in the complaint or at the time of service.   

            In support of the motion, Defendant provides the declaration of James M. Silva, who is Defendant’s attorney.  Mr. Silva states that he contacted Plaintiff’s counsel to inform Plaintiff that Defendant had not been served with the summons and was not in possession of the subject commercial property from June 1, 2021 to May 31, 2022.  (Silva Decl., ¶6.)  He states that he informed Plaintiff’s counsel that So-Cal Discount Medical Supply, Inc. had entered into a lease agreement for the subject property in January 2021 and that Defendant was not present at the subject commercial property at any time when service of the 3 Day Notice to Pay or Quit or the Summons and Complaint were allegedly served.  (Id., ¶7, Ex. D.)  Mr. Silva states that he provided Plaintiff’s counsel with a copy of the commercial lease agreement between So-Cal Discount Medical Supply, Inc. and Plaintiff to show that Defendant was not in possession of the property.  (Id., ¶8, Ex. E [Commercial Lease Agreement between Plaintiff and So-Cal Discount Medical Supply, Inc.].) 

            Based on the evidence provided by Defendant, it appears that Plaintiff entered into a lease agreement with So-Cal Discount Medical Supply, Inc. on December 15, 2020 and that the lease term was for 5 years from December 15, 2020 to December 14, 2025.  (Silva Decl., Ex. E.)  The document is signed by Lynn Miller of Plaintiff and Adam Delomonte of So-Cal Discount Medical Supply, Inc.  Thus, it appears that Defendant Summit Medical Supply Corp. is no longer in possession of the premises and was not in possession of the premises at the times alleged in the complaint or at the time the summons and complaint were purportedly served.  Mr. Silva also provides the Statement of Information for Defendant, which is separate and distinct from the Statement of Information for So-Cal Discount Medical Supply, Inc., and each entity has separate entity numbers.  (See Silva Decl., Ex. A [Defendant’s Statement of Information], Ex. B [So-Cal Discount Medical Supply, Inc. Statement of Information].)  While Adam Delomonte is the agent for service of process for both entities, Defendant is not the entity currently in possession of the premises as a new lease was entered between Plaintiff and So-Cal Discount Medical Supply, Inc.

Thus, the proof of service of the summons and complaint on Defendant shows that service was not properly effectuated on Defendant.  The documents were not served on Defendant at its place of business because it no longer occupied the premises at 9313 Borden Ave. in Sun Valley at the time of substituted service and the subsequent service by mailing.  Further, it is unclear who was served with the documents as the person served is identified as John “Doe,” but this individual is not identified as Adam Delomonte, the registered agent for service of process for Defendant. 

As such, the motion to quash the service of the summons and complaint is granted. 

CONCLUSION AND ORDER

            Defendant Summit Medical Supply Corp.’s motion to quash the service of the summons and complaint is granted.  

Defendant shall provide notice of this order.