Judge: John J. Kralik, Case: 24NNCV01422, Date: 2024-08-09 Tentative Ruling

Case Number: 24NNCV01422    Hearing Date: August 9, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Marisol Holguin Pina (“Plaintiff”) alleges that on May 4, 2022, she was on the subject premises, which was her residence and an apartment complex located at 12254 Burbank Blvd., Burbank, CA 91507.  She alleges that while she was leaving her apartment at night, she slipped and fell on an external staircase that was hazardous, in disrepair, and dark due to the stairwell light being out.  Plaintiff alleges that Defendants J.K. Residential Services, Inc. and 12254 Burbank Blvd., LLC owned, leased, occupied, managed, and/or controlled the premises. 

The complaint, filed May 6, 2024, alleges causes of action for: (1) premises liability; and (2) general negligence.

B.     Motion on Calendar

On July 8, 2024, Defendant J.K. Residential Services, Inc. (“Defendant”) filed a motion to quash service of the summons and complaint. 

On July 29, 2024, Plaintiff filed a non-opposition to the motion. 

DISCUSSION

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

            The proof of service of the summons and complaint (filed June 6, 2024) states that Defendant was served pursuant to CCP § 415.45 on May 31, 2024 at 11:20 a.m. by posting a copy of the documents at a conspicuous place on the property and thereafter mailing a copy via certified mail to all occupants on June 3, 2024.  The proof of service indicates that Defendant was served at 2016 Riverside Drive, Los Angeles, CA 90039 and that Ritesh Desai is the registered agent for service of process.  Service was effectuated by Steven Phillips, a registered process server. 

            Defendant argues that service was not properly effectuated as this is not an unlawful detainer action.  The proof of service states that Defendant was served by posting and mail pursuant to CCP § 415.46. 

            CCP § 415.45 states:

(a) A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication and that:

(1) A cause of action exists against the party upon whom service is to be made or he is a necessary or proper party to the action; or

(2) The party to be served has or claims an interest in real property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property.

(b) The court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address.

(c) Service of summons in this manner is deemed complete on the 10th day after posting and mailing.

(d) Notwithstanding an order for posting of the summons, a summons may be served in any other manner authorized by this article, except publication, in which event such service shall supersede any posted summons.

(CCP § 415.45.)  CCP § 415.46 discusses the procedure for serving a prejudgment claim of right to possession in an unlawful detainer action. 

            This is not an action for unlawful detainer. The complaint does not allege an unlawful detainer action, but instead alleges causes of action for premises liability and general negligence.  Thus, serving Defendant pursuant to CCP §§ 415.45 and 415.46 was improper.  As such, the motion to quash service of the summons and complaint is granted. 

Defendant also argues that Ritesh Desai, the agent for service of process, did not personally receive the summons and complaint in person or by mail.  Mr. Desai states in his declaration that he was not personally served, he routinely reviews mail for Defendant, and he has never received a copy of the summons and complaint by mail.  (Desai Decl., ¶¶2-5.)  Jasmine Gonzalez, an employee at the 2016 Riverside Drive location, states that she was never served with the summons and complaint, but found the documents on the front doorstep outside of the building.  (Gonzalez Decl., ¶¶1-2.)  These declarations also support a showing that the documents were not properly served on the agent for service of process for Defendant. 

In the non-opposition, Plaintiff argues that it is concerned that Defendant is evading service by refusing personal service and failing to communicate with Plaintiff’s counsel.  If Plaintiff’s further attempts at service are unsuccessful, such issues will be addressed at that time. 

The motion to quash service of the summons and complaint is granted. 

CONCLUSION AND ORDER

            Defendant J.K. Residential Services, Inc.’s motion to quash service of the summons and complaint is granted.           Defendant shall provide notice of this order.

DATED:  August 9, 2024                                           ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court