Judge Kerry Bensinger, Case Number: 24STCV10207, Date: 2024-07-25 Tentative Ruling

RESPONDING PARTY: Plaintiff Joseph Evaristo and Catherine Evaristo, As Trustees of the Evaristo Family Trust Dated May 4, 2016

On April 23, 2024, Plaintiffs Joseph and Evaristo and Catherine Evaristo, as Trustees of the Evaristo Family Trust Dated May 4, 2016 (“Plaintiffs”) filed this unlawful detainer action against Defendants Aina Dumlao and Bru Muller (“Defendants”) for failure to pay rent for the property 3450 N. Cahuenga Blvd. West, Unit #510, Los Angeles, CA 90068 (the “Property”). Defendants are self-represented.

On May 20, 2024, Plaintiffs filed an Application for Order to Post. In support of the Application, Plaintiffs attached the affidavit of due diligence of its process server attesting to having made three failed attempts at personal service at the Property on April 26, 2024, April 27, 2024, and May 1, 2024. The court granted the Application on the same day.

On June 6, 2024, Plaintiffs filed a Proof of Service of Summons by Posting pursuant to Code of Civil Procedure section 415.45. The Proof of Service states that the summons was placed on the front door of the Property on May 21, 2024, and was subsequently mailed to Defendants by certified mail.

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 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.

(Code Civ. Proc., § 415.45, subd. (a).) 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. (Code Civ. Proc., § 415.45, 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.)

Plaintiffs request judicial notice of (1) Application and Order to Serve Summons by Posting for Unlawful Detainer, dated May 20, 2024, (2) Proof of Service of Summons of Aina Dumlao, dated June 6, 2024, and (3) Proof of Service of Summons of Bru Muller, dated June 6, 2024.

Defendants are 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.) 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, supra, 194 Cal.App.4th at p. 1427.)

Here, Plaintiffs filed an Application for Order to Post supported by their registered process server Sam E. Nehoray’s declaration of due diligence. According to the declaration, Mr. Nehoray attempted personal service on 4/26/24 at 6:35 p.m., 4/27/24 at 10:14 a.m., and 5/1/24 at 2:48 p.m. (See Plaintiffs’ Request for Judicial Notice (RJN) 1.) Plaintiffs meet their burden to create a rebuttable presumption that service was proper.

Defendants attack Mr. Nehoray’s alleged attempts at service. In support, Defendants explain that they have a motion-detector doorbell system which captures images of any person who comes to the door. (See generally, Dumlao Decl. and Muller Decl.) Defendants attach still images from the dates of Mr. Nehoray’s attempts at service (4/26, 4/27, and 5/1), none of which show Mr. Nehoray’s image. (See Dumlao Decl. and Muller Decl., Exs. 1-3.) Defendants further explain Mr. Nehoray appears in still images taken from their doorbell system on 5/8/24 and 5/21/24, which is how they know Mr. Nehoray did not attempt service on 4/26, 4/27, or 5/1. (See Dumlao Decl. and Muller Decl., Exs. 4-5.) In other words, Defendants argue that the absence of Mr. Nehoray’s image from the doorbell system’s daily logs proves that Mr. Nehoray did not attempt service prior to 5/8 or 5/21.

The court is not persuaded by Defendants’ showing. Defendants’ argument is predicated on the reliance of a doorbell camera system. Defendants do not provide any foundation for the functionality, reliability, or operation of that system either generally, or on the days in question. Moreover, Plaintiffs offer Mr. Nehoray’s declaration in opposition to the motion wherein Mr. Nehoray again describes his attempts at service on 4/26, 4/27, and 5/1. The court finds Mr. Nehoray’s Declaration credible. Defendants fail to rebut the presumption that service was proper.

Defendants are ordered to file and serve their Answer to the Complaint within 5 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court