Judge: John J. Kralik, Case: 23BBCV02636, Date: 2024-02-02 Tentative Ruling

Case Number: 23BBCV02636    Hearing Date: February 2, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Angela Mehtemetian and Sarkis Mehtemetian as co-trustees of The Mehtemetian Revocable Trust dated November 18, 2014 (“Trust”), Angela Mhtemeti Mehtemetian, and Sarkis Mehtemetian (collectively, “Plaintiffs”) allege that Plaintiffs own property located at 10405 Ditson St. in Sunland.  They allege that Defendant Claudia Kelley (“Defendant”) owns property at 10417 Ditson St.  Plaintiffs allege that in June 2022, while they were still in escrow for their property, Defendant approached the wall dividing the backyard between the two properties and pointed out that Plaintiffs’ chain link fence encroached onto Defendant’s side at one section.  Plaintiffs allege they offered to allow Defendant to move the fence back.  They allege that in October 2022, Defendant laid rocks along the side of Plaintiffs’ driveway in a dirt area separating the two properties and that Defendant entered their property to put up plastic poles with strings.  They allege that Defendant also told Plaintiffs not to cut the hedges, though Plaintiffs claim the shrubbery was on their side of the property.  Plaintiffs allege that they retained a surveyor, who confirmed that the shrubs were on their side of the property.  Plaintiffs allege that they began efforts to install a chain link fence and that Defendant has begun a campaign of harassment against them as a result.

The complaint, filed November 9, 2023, alleges causes of action for: (1) trespass to land; (2) private nuisance; (3) IIED; (4) negligence; (5) injunction; (6) quiet title; and (7) declaratory relief.

B.     Motion on Calendar

On January 2, 2024, Defendant (in pro per) filed a motion to quash service of the summons and complaint.  On January 8, 2024, Defendant filed a notice of errata for the motion.  The Court will consider the merits of the later-filed motion as the operative motion papers. 

On January 12, 2024, Plaintiffs filed an opposition brief.

On January 25, 2024, Defendant filed a reply brief.

DISCUSSION

            Defendant moves to quash Plaintiffs’ service of the summons and complaint. 

            The proof of service of the summons and complaint (filed December 4, 2023) states that Defendant was served by substituted service at 10417 Ditson St., Sunland, CA 91040 at her home, by serving Jeffrey (Doe), co-resident, on November 26, 2023 at 5:40 p.m.  The documents were thereafter mailed on November 27, 2023 at the same address.  Service was effectuated by Jose Felix Nava De Jesus, a registered process server.  The declaration of diligence states that the process server made 3 attempts at different times to serve Defendant.    

            The motion is not accompanied by a declaration by Defendant.  In the memorandum of points and authorities of the motion papers, Defendant argues that she accidentally discovered the complaint on December 29, 2023 when she received an advertisement letter stating that a lawsuit may have been filed against her.  She argues that she was home on November 21, 2023 and November 24, 2023 at the time that the process server purportedly attempted to serve her and that the declaration of diligence falsely states that she was not home.  Defendant argues that no one knocked on her door on those dates.  Defendant also states that she does not have a co-resident, she does not know a “Jeffrey” of the description in the proof of service, and she was home on November 26, 2023 at 5:40 p.m. but no one knocked on her door or served her.  Finally, Defendant argues that she never received a mailed letter or package of the summons and complaint.  (Defendant provides screenshots of Ring camera doorbell footage at the times the service was purportedly made.  [Mot. at Ex. B].)

            In opposition, Plaintiffs argue that the process server properly effectuated service by substituted service.  They provide the declaration of counsel JT Fox, who provides a screenshot from DDS Legal’s website showing that substituted service was properly effectuated.  (Fox Decl., ¶4, Ex. B.)  Exhibit B of the opposition papers includes a Work Order document with a satellite image of the house where service was effectuated.  Mr. De Jesus also provides his declaration wherein he states that he made 2 unsuccessful attempts to serve Defendant on November 21 and 24, 2023, and that he was able to serve Defendant by substituted service on November 26, 2023 at 5:40 p.m. when he provided the documents to Jeffery “Doe.”  (De Jesus Decl., ¶¶4-6.)  He confirms that the satellite imagery is where the substituted service took place and that he thereafter mailed the documents to Defendant’s residence on November 27, 2023.  (Id., ¶¶7, 9.) 

With the reply brief, Defendant provides her declaration incorporated into the reply’s memorandum of points and authorities.   She states most of the same information as her motion papers.  She also states that on December 13, 2023, she was served papers for a TRO case that Plaintiffs filed in Case No. 23PDRO-01772, but those papers were not for this instant action.  She reiterates that she does not know a “Jeffrey” as described in the proof of service, she lives alone, and she has no reason to evade service. 

            Here, there is a presumption of proper service.  In the motion, Defendant makes various arguments that she was not properly served and that she was home at the times Mr. De Jesus attempted service in November 2023.  While Defendant provides some screenshots of her neighbor’s Ring security cameras, these screenshots do not show whether there was or was not any activity in front of her door.  (It is also unclear where her house is compared to the neighbor’s Ring security camera photographs.)  Further, the screenshots she provides of her neighbor’s security camera only takes pictures at isolated times at 7:21 p.m. and 8:30 p.m. on November 21, 2023, though the declaration of diligence states that Mr. De Jesus attempted service on November 21, 2023 at 7:40 p.m.  The November 24, 2023 screenshot from her neighbor’s Ring camera provides a picture at 9:31 a.m., though the declaration of diligence states that service was attempted at 8:50 a.m.  Finally, the November 26, 2023 screenshots from Defendant’s neighbor’s Ring security camera are taken at 5:34 p.m. and 5:56 p.m., though service was effectuated at 5:40 p.m.  Not only are the times of the screenshots not provided at the time of service stated by Mr. De Jesus in his declaration of diligence and the proof of service, but the screenshots are taken from Defendant’s neighbor’s Ring camera and no information has been provided by Defendant regarding the placement of her home in relation to the neighbor’s camera.

            At this time, the Court finds that Defendant has not upheld her burden in showing that service was not properly effectuated.  As such, the motion is denied. 

CONCLUSION AND ORDER

            Defendant Claudia Kelley’s motion to quash service of the summons and complaint is denied.  Defendant is ordered to file a responsive pleading.

            Defendant shall provide notice of this order.

Note: The Court will be handling hearings remotely on February 2, 2024. If you wish to be heard in person, please inform the clerk and your matter will be continued to allow you to appear personally.

DATED:  February 2, 2024                                        ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court