Judge: Latrice A. G. Byrdsong, Case: 24STLC00667, Date: 2024-05-14 Tentative Ruling

Case Number: 24STLC00667    Hearing Date: May 14, 2024    Dept: 25

Hearing Date:                        Tuesday, May 14, 2024

Case Name:                             COVINA HILLS MHC v. EUGENIA SOUZA, JERMAINE D. SOUZA, JULIO JAVIER ROMO, FRANCIS VINULA, and DOES 1 through 100

Case No.:                                24STLC00667

Motion:                                   Motion to Quash Summons and Complaint or Alternatively Motion to Dismiss Entire Action for Lack of and Defective Service of Process  

Moving Party:                         Defendant Francis Vinuya

Responding Party:                   Plaintiff Covina Hills MHC

Notice:                                    OK

Tentative Ruling:                    Defendant Francis Vinuya’s Motion to Quash Summons and Complaint or Alternatively Motion to Dismiss Entire Action for Lack of and Defective Service of Process is DENIED.

BACKGROUND

On January 30, 2024, Plaintiff Covina Hills MHC (“Plaintiff”) filed this action against Defendants Eugenia Souza, Jermaine D. Souza, Julio Javier Romo, Francis Vinula, and Does 1 through 100, asserting causes of action for (1) declaration of mobile home abandoned, (2) open book account, (3) breach of implied in fact contract, (4) common counts, (5) declaratory relief, (6) breach of written contract, and (7) intentional misrepresentation.   

The Complaint alleges the following, among other things. Plaintiff “operates a mobilehome park in La Puente. Plaintiff served a Sixty (60) Notice To Terminate Possession on Defendants Eugenia Souza and Jermaine D. Souza (aka German Souza) … for [possessing] a pit bull dog that terrorized the community.” (Compl., ¶ 7.) Plaintiff commenced eviction proceedings against the defendants when the defendants could not sell their mobile home. (Compl., ¶ 9.) Before the case went to trial, Eugenia Souza informed the court that she had vacated and moved from the mobile home. (Compl., ¶ 10.) Therefore, the defendant was asked to pay storage fees and to remove her mobile home from the park. (Compl., ¶ 10.) However, because the defendant did not remove the mobile home and pay back storage charges, Plaintiff commenced abandonment proceedings, which were later dismissed because of an apparent transfer of ownership of the mobile home. (Compl., ¶ 10.) Subsequently, Plaintiff discovered through title searches on August 15 and November 9, 2023, that the defendants Eugenia Souza and Jermaine D. Souza were still the registered owners of the mobile home. (Compl., ¶¶ 14, 17.) Therefore, Plaintiff seeks a judicial declaration that the mobile home at issue is abandoned. (Compl., ¶ 18.) Plaintiff also seeks to recover, among other things, monthly storage charges from May 1, 2022. (Compl., ¶ 20.)

On February 8, 2024, Defendant Francis Vinula (“Defendant”) filed the instant “Motion to Quash Summons and Complaint or Alternatively Motion to Dismiss Entire Action for Lack of and Defective Service of Process” before Plaintiff filed a proof of service.

On February 13, 2024, Plaintiff filed a proof of service of summons indicating that Defendant was served through personal service on February 6, 2024.

            On April 18, 2024, Plaintiff filed its opposition to the motion to quash.

            On May 13, 2024, Defendant filed a late reply in the form of a declaration.

MOVING PARTY’S POSITION

            This action should be dismissed because no personal service attempt was made by a registered process server at the correct address, and no declaration of due diligence was filed indicating personal service attempts. Defendant only received papers through mail.

OPPOSITION

            The Court should deny the motion because the Defendant was properly served by a registered California process server, who has submitted a declaration attesting to personal service.

REPLY

            Defendant alleges that the process server falsely served him with a process containing a different name and address in both his home and alleged place of employment.

ANALYSIS

I.          MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

A.        Legal Standard

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. ¶ The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.” Code Civ. Proc. § 415.10.

Service may also be effectuated on an individual through substituted service. Code Civ. Proc. § 415.20, subd. (b) (“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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 other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing”).

A defendant has 30 days after the service of the summons, or 40 days if service was effectuated by substitute service, to file a responsive pleading. Code Civ. Proc., § 412.20, subds. (a)(3), (b).

“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 serve and file a notice of motion for one or more of the following purposes: ¶ To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Code Civ. Proc., § 418.10, subd. (a)(1).

B.        Discussion

As an initial matter, the Court finds Defendant’s motion timely as it was filed on February 8, 2024, within two (2) days of the alleged personal service on February 6, 2024.

Defendant moves to quash the service, testifying as follows in his declaration. No attempts of personal service were made by a registered process server, and no notice or its equivalent was properly served, on Defendant. Motion, Declaration of Francis Vinuya (“Vinuya Decl.”), ¶¶ 3, 6. No one is authorized to accept service of process on his behalf. Vinuya Decl., ¶ 9. Since Defendant was not properly served, Plaintiff cannot maintain this action against him. Vinuya Decl., Id.

In opposition, Plaintiff submits the declaration of Elias Eihayek (“Eihayek”), a registered California process server. Eihayek testifies that on February 6, 2024, he personally served Defendant at Defendant’s place of business, REMAX Olympic, located at 3110 East Garvey Avenue South, West Covina, California. Declaration of Elias Eihayek, filed April 18, 2024, ¶ 2.

Defendant alleges in reply to the opposition that the process server falsely served him with a process containing a different name and address in both his home and alleged place of employment. Vinuya Decl. filed May 13, 2024, ¶ 5.

“The filing of a proof of service creates a rebuttable presumption that the service was proper.” Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.

In addition, “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of 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.” Evid. Code § 647.

Here, the Proof of Service of Summons Plaintiff filed on February 13, 2024, states that Eihayek, a registered California process server, effectuated personal service on the Defendant on February 6, 2024, 4:42 pm, at 3110 E. Garvey Ave S, West Covina, CA 91791.

Defendant has not produced any evidence rebutting the presumption that service was proper. Specifically, Defendant has not testified that on February 6, 2024, at 4:42 pm, he was not at his alleged place of business, REMAX Olympic, allegedly located at 3110 East Garvey Avenue South, West Covina, California.

Accordingly, the Court finds it proper to deny the motion.

II.        CONCLUSION

            Defendant Francis Vinuya’s Motion to Quash Summons and Complaint or, Alternatively, Motion to Dismiss Entire Action for Lack of and Defective Service of Process is DENIED.

            Moving party is ordered to give notice.