TENTATIVE RULING

Defendant Jean-Pierre Murray’s Motion to Quash Service of Summons and Complaint is DENIED.

Defendant Jean-Pierre Murray shall filed a responsive pleading within five (5) days of entry of this order. (Code Civ. Proc., § 1167.4, subd. (b).)

Defendant Jean-Pierre Murray to give notice. 

REASONING

Code of Civil Procedure section 418.10, subdivision (a)(1), provides that a defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him. Defendant Jean-Pierre Murray (“Defendant”) moves to quash service of the summons and complaint upon him on the ground that Plaintiffs Richard N. Husky and Kevan J. Husky (“Plaintiffs”) did not serve Defendant by substituted service, nor was posting and mailing service proper here. Notably, “[w]hen a defendant challenges the court’s personal jurisdiction on the ground of improper service of process,” as Defendant does here, “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, quotation marks omitted.)

Code of Civil Procedure section 415.45, subdivision (a), provides as follows:

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.

Plaintiffs’ counsel applied to the Court for an order to serve the summons and complaint by posting with a representation that service had not been attempted during regular business hours at Defendant’s place of employment because Defendant’s place of employment was unknown, and service had been attempted at another location known to be occupied by Defendant, which was shown in a declaration of diligence provided by a registered process server who described five attempts to personally serve at 1017 North Beverly Drive and six attempts to personally serve at 21922 Pacific Coast Highway. The proof of service is executed by a registered California process server, which creates a rebuttable presumption of proper service pursuant to Evidence Code section 647.

First, insofar as Defendant takes issue with service of the 3-day notice, this is not a matter properly considered in a motion to quash service of a summons and complaint. Defendant may raise such an argument in a proper motion. Second, it is beyond dispute that Defendant was not personally served or served by substituted service; however, Code of Civil Procedure section 415.45, subdivision (a), clearly provides for an alternative method of service if personal service or substituted service cannot occur, which was the case here, as demonstrated in the process server’s declaration of diligence, and the Court accordingly granted Plaintiffs’ application to serve by posting and mailing. The Court finds that the declaration of diligence demonstrates sufficient attempts at personal service or substituted service. Insofar as Defendant argues that the summons was not posted on the premises, Defendant states only that he did not see the summons and complaint posted, which does not defeat the presumption that the process server’s statement of posting was accurate. (See Mot., Murray Decl. ¶ 11.) Accordingly, Defendant Jean-Pierre Murray’s Motion to Quash Service of Summons and Complaint is DENIED. Defendant Jean-Pierre Murray shall filed a responsive pleading within five (5) days of entry of this order. (Code Civ. Proc., § 1167.4, subd. (b).)