Judge: Katherine Chilton, Case: 22STLC02794, Date: 2022-12-21 Tentative Ruling

Case Number: 22STLC02794     Hearing Date: December 21, 2022    Dept: 25

PROCEEDINGS:      MOTION TO QUASH SERVICE OF SUMMONS; REQUEST FOR DISMISSAL AND MONETARY SANCTIONS

MOVING PARTY:   Defendant David Shaker

RESP. PARTY:         Plaintiff April 26th LLC

MOTION TO QUASH SERVICE OF SUMMONS;

REQUEST FOR DISMISSAL & MONETARY SANCTIONS

(CCP §§ 418.10)

TENTATIVE RULING:

Defendant David Shaker’s Motion to Quash Service of Summons and Complaint is DENIED.

Furthermore, Defendant Shaker’s Request for Dismissal and for Monetary Sanctions is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on December 9, 2022.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of December 19, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 20, 2022, Plaintiff April 26th LLC filed a Complaint for Recovery of COVID-19 Rental Debt against Defendant David Shaker (“Defendant”) for property located for recovery of unpaid rent between March 1, 2020, and September 30, 2021.  (Compl. ¶ 6.)

On July 27, 2022, Plaintiff filed Proof of Service by Substituted Service indicating that the pleadings were left with “‘JOHN DOE’ – PERSON IN CHARGE” on May 25 and mailed to the same address on May 26, 2022.  (7-27-22 Minute Order.)  On the same day, based on Plaintiff’s request, the Court entered default against Defendant.  (7-27-22 Request for Entry of Default/Judgment.)

On July 27, 2022, Defendant filed Motion to Quash Service of Summons and Complaint and Request for Dismissal and Monetary Sanctions (“Motion”).  On December 8, 2022, Plaintiff filed an Opposition to the Motion and on December 9, 2022, Plaintiff filed an Amended Opposition to the Motion.  No reply has been filed.

II.              Legal Standard

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]”  (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.)  “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

            “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow” may move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. § 418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20(a)(3).)

            “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.  [Citation.]”  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647.)

III.            Discussion

A.    Quash Service of Summons

Defendant moves to quash services of summons and complaint on the ground that the summons and complaint were not served on the Defendant.  (Mot. p. 1-2.)

On July 27, 2022, Plaintiff filed Proof of Service by Substituted Service indicating that a registered California process server left the pleadings with “‘JOHN DOE’ – PERSON IN CHARGE” on May 25 and mailed them to the same address on May 26, 2022.  (7-27-22 Minute Order.)  On the same day, based on Plaintiff’s request, the Court entered default against Defendant.  (7-27-22 Request for Entry of Default/Judgment.)

            “The clerk’s entry of default cuts off [a] defendant’s right to take further affirmative steps such as filing a pleading or motion, and the defendant is not entitled to notices or service of pleadings or papers.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.)  Given that Defendant Shaker is in default, he cannot seek affirmative relief from the Court.  In order to participate in the action, he must first seek to set aside the default entered against him on July 27, 2022.

For this reason, the Motion to Quash Service of Summons and Complaint is DENIED.

B.    Request for Dismissal

Defendant also requests that the Court dismiss the action since “it has been improperly filed during the Moratorium related to the Coronavirus (COVID-19) Pandemic.”  (Mot. pp. 2, 10.)  Defendant adds that the property in question has been uninhabitable due to several reasons, and he has had to move to a new location.  (Ibid. at pp. 5-6.)  Defendant does not cite to any legal authority that would give the Court authority to dismiss the case other than a general reference to tenant protections during the Pandemic.  Furthermore, in its Opposition, Plaintiff does not address Defendant’s arguments regarding dismissal.

According to the Los Angeles Municipal Code § 49.99.2,

During the Local Emergency Period and for 12 months after its expiration, no Owner shall endeavor to evict or evict a residential tenant for non-payment of rent during the Local Emergency Period if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic. These circumstances include loss of income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health-care expenses related to being ill with COVID-19 or caring for a member of the tenant's household or family who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures. Tenants shall have up to 12 months following the expiration of the Local Emergency Period to repay any rent deferred during the Local Emergency Period. Nothing in this article eliminates any obligation to pay lawfully charged rent. However, the tenant and Owner may, prior to the expiration of the Local Emergency Period or within 90 days of the first missed rent payment, whichever comes first, mutually agree to a plan for repayment of unpaid rent selected from options promulgated by the Los Angeles Housing Department ("LAHD") for that purpose.  (Amended by Ord. No. 187,122, Eff. 8/8/21.)

As cited above, the language of the Moratorium solely applies to evictions and does not prohibit a landlord from seeking recovery of COVID-19 rental debt.  (L.A.M.C. § 49.99.2.)

            Furthermore, Code of Civil Procedure §§ 871.10 through 871.12 set out the procedures for recovery of COVID-19 rental debt and are in effect until October 1, 2027.  (Code of Civ. Proc. §§ 871.10 et seq.)  This chapter contains the following prohibitions:

1.     “An action to recover COVID-19 rental debt, as defined in Section 1179.02, that is subject to this section shall not be commenced before November 1, 2021.” (Code of Civ. Proc. § 871.10(c).)

2.     “Subdivisions (a) through (c), inclusive, shall not apply to an action to recover COVID-19 rental debt, as defined in Section 1179.02, that was pending before the court as of January 29, 2021.”  (Code of Civ. Proc. § 871.10(d).)

3.     “Except as provided in subdivision (g), any action to recover COVID-19 rental debt, as defined in Section 1179.02, that is subject to this section and is pending before the court as of January 29, 2021, shall be stayed until November 1, 2021.”  (Code of Civ. Proc. § 871.10(e).)

4.     “Actions for breach of contract to recover rental debt that were filed before October 1, 2020, shall not be stayed and may proceed.”  (Code of Civ. Proc. § 871.10(g)(1).)

Given that the instant Complaint was filed on April 20, 2022, for recovery of rent accrued between March 1, 2020, and September 30, 2021, none of the prohibitions cited above apply to this case.  (See Compl.)

Finally, Los Angeles County’s COVID-19 Tenant Protections Resolution, updated on November 15, 2022, addresses the repayment of unpaid rent, and does not prohibit actions by landlords to recover unpaid rent.  (COVID-19 Tenant Protections Resolution pp. 16-17, VI.B.1.)

            For these reasons, the Court does not find that tenant protections enacted to address housing matters during the COVID-19 pandemic give the Court authority to dismiss the instant case.  Thus, Defendant’s Request for Dismissal of the Complaint is DENIED.

C.    Monetary Sanctions

Finally, Defendant requests sanctions in the amount of $2,225.00 for attorney’s fees and costs, given that the case was improperly field during the Moratorium.  (Mot. p. 2.)  Defendant also requests a civil penalty of $5,000.00 per day from April 20, 2022, until the case is dismissed, for harassment and retaliation against Defendant.  (Ibid.)

      Given that the Court finds that dismissal of the Complaint is not warranted, Defendant’s request for sanctions is also DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant David Shaker’s Motion to Quash Service of Summons and Complaint is DENIED.

Furthermore, Defendant Shaker’s Request for Dismissal and for Monetary Sanctions is DENIED.

Moving party is ordered to give notice.