Judge: Jon R. Takasugi, Case: 24STCV11638, Date: 2024-08-14 Tentative Ruling

Case Number: 24STCV11638    Hearing Date: August 14, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s motion to quash service of Summons and Complaint is DENIED.

            On 5/9/2024, Plaintiff Grand Promenade (Plaintiff) filed an unlawful detainer action against Benardo Moretti (Defendant).

            On 6/11/2024, Defendant moved to quash Plaintiff’s service of Summons and Complaint.

Discussion

             Defendant, who is representing himself in properia persona, argues that Plaintiff’s service of him was defective because he was never personally served. Rather, “on 06/01/2024, [Defendant] found a packet containing the Unlawful Detainer documents outside his property.” (Motion, 2: 2-3.)

Code of Civil Procedure section 415.45 provides that:

(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. 

In opposition, Plaintiff does not dispute that Defendant was served by post and mail, rather than via personal service.

As set forth in the declaration of due diligence from Plaintiff’s process sever, Plaintiff attempted to serve Defendants several times without success. As a result, on 5/30/2024, Plaintiff moved for an Order to Post (OTP) to request permission to serve by post and mail. The court granted said application and Plaintiff thereafter effectuated service of the summons and complaint on 06/03/2024 in accordance with CCP section 415.45. 

When served by a registered process server, the return itself establishes a presumption of the facts stated in the therein, affecting the burden of producing evidence. Evidence Code section 647; see also Palm Property Investments, LLC v. Yadegar, 194 Cal.App.4th 1419, 1427-28 (2011) (providing “that where service is carried out by a registered process server, Evidence Code section 647 applies to eliminate the necessity of calling the process server as a witness at trial. This conclusion is consistent with the purpose of the unlawful detainer procedure to afford a relatively simple and speedy remedy for specific landlord-tenant disputes. [citation omitted]. Accordingly, we conclude the trial court erred by failing to apply the evidentiary presumption afforded by Evidence Code 647. The excluded proof of service established that a registered California process server served the three-day notice.”).

Here, Defendant’s motion, which is based solely on a failure to personally serve him, is insufficient to overcome the presumption of proper service, given Plaintiff’s evidence of service in compliance with CCP section 415.45.

Based on the foregoing, Defendant’s motion to quash is denied.

It is so ordered.

Dated:  August    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.