Judge Kerry Bensinger, Case Number: 24STCV02043, Date: 2024-10-03 Tentative Ruling

On January 25, 2024, Plaintiff Audra Iovino (Plaintiffs) filed this case against Defendant Wilma Almaraz (Almaraz), individually and as Trustee of the Wilma Almaraz Trust, for wrongful eviction from the residential property at 17061 Lisette St., Granada Hills, CA 91344.

On May 2, 2024, Plaintiff filed a Proof of Service of Summons by substituted service. The Proof of Service states that the summons was served on a “John Doe” co-resident on April 7, 2024, and thereafter mailed by first-class mail. Service of process was effected by a registered California process server.

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code Civ. Proc., § 415.10.) If a copy of the summons and complaint cannot, with reasonable diligence, be personally delivered to the person being served, substitute service may be effected by leaving a copy of the summons and complaint at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address ... in the presence of ... a person apparently in charge ... and by thereafter mailing a copy of the summons and complaint by first-class mail ... to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (b).)

A defendant must file a motion to quash service of summons on or before the last day on which the defendant must plead unless the time is extended by stipulation or by a judge’s order for good case. (Code Civ. Proc., § 418.10, subd. (a)(1).) Although the notice of motion must designate a hearing date not more than 30 days after the notice is filed, scheduling a hearing date beyond the 30-day time period does not deprive the court of jurisdiction to consider the merits of the motion. (Olinick v. BMB Entertainment (2006) 139 Cal.App.4th 1286, 1295-96.)

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (Zara); Evid. Code, § 647 [“The return of a process server registered pursuant to ... the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”].) This evidentiary presumption also applies in unlawful detainer actions and is “consistent with the purpose of the unlawful detainer procedure to afford a relatively simple and speedy remedy for specific landlord-tenant disputes.” (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427 (Palm Property).) However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42.) Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)

When a defendant moves to quash service of summons, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”¿ (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)

Almaraz is not entitled to an order quashing service of the summons and complaint. Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (Zara, supra, 199 Cal.App.4th at p. 390; see also Evid. Code, § 647.)

Here, Plaintiff filed a Proof of Service of Summons by substituted service which is supported by her registered process server Ronny DelCid’s declaration of due diligence. According to the declaration, Mr. DelCid made thirteen separate attempts at personal service between 2/26/24 to 4/7/24 at 27542 Crossglade Avenue, Canyon Country, California 91351 (the Premises). (See Proof of Service of Summons, 5/2/24.) After personal service failed, Mr. DelCid delivered the summons and complaint to an unnamed male on April 7, 2024. Plaintiff meets her burden to create a rebuttable presumption that service was proper.

Almaraz attacks Mr. DelCid’s alleged service by substituted service. In support, Almaraz explains she was out of the country on April 7, 2024 and that no other person occupied or was authorized to be present at the Premises. (Almaraz Decl., ¶ 4.) Almaraz further explains Mr. DelCid’s description of the person who was delivered the summons does not match any member of Almaraz’s household, or of any person with whom she is familiar. (Id.) In other words, Almaraz challenges the veracity of Mr. DelCid’s declaration.

The court is not persuaded by Almaraz’s showing. As Plaintiff points out, if Almaraz was out of the country on April 7, 2024, Almaraz could not and would not know whether anyone was present at the Premises at the time Mr. DelCid effected substituted service. Plaintiff also submits evidence to show Almaraz’s insurance company was informed of the lawsuit and that Almaraz’s personal attorneys did not allow her insurance carrier to accept service. (See Chung Decl., ¶¶ 2-3, Ex. B.) The point being, if no one associated with Almaraz received the complaint how did Almaraz and/or her insurance company learn of the lawsuit. Almaraz does not rebut the presumption that service was proper.

Almaraz is ordered to file and serve her Answer to the Complaint within 10 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court