Judge Marcella O. Mclaughlin, Case 37-2023-00035157-CU-UD-CTL 2023-10-20 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00035157-CU-UD-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Unlawful Detainer - Residential Motion to Quash (Civil) 37-2023-00035157-CU-UD-CTL 118 SOUTH GRAND AVE LP VS RUIS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 09/06/2023

Tentative Ruling on Motion to Quash Service of Summons (UD) 118 South Grand Ave. v. Ruis, Case No. 2023-35157 Oct. 20, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a residential unlawful detainer case involving real property in El Cajon. Plaintiff alleges that defendant defaulted in the payment of rent beginning in October of 2022. A three-day notice to pay rent or quit was served in July, 2023. The complaint was filed in August of 2023.

According to ROA 22, defendant was personally served at her residence on August 17, 2023.

When defendant failed to timely file a responsive pleading, plaintiff obtained her default. ROA 24. This occurred on August 31, 2023.

On September 5, defendant filed a motion to quash service on the grounds the complaint was not handed to her, but rather was simply taped to her front door. ROA 11. The court will interpret this as a request to also set aside the default. Plaintiff filed opposition. ROA 33-34. The court has reviewed the papers, and no further submissions are authorized in connection with this motion.

2. Applicable Standards.

A. The entry of default terminates a defendant's right to take any further affirmative steps in the litigation unless and until the default is set aside or a default judgment is entered. Devlin v. Kearney Mesa AMC/Jeep/Renault, 155 Cal. App. 3d 381, 385 (1984); People v. One 1986 Toyota Pickup 31 Cal.App.4th 254, 259 (1995).

B. 'A motion to quash service of summons permits a defendant to challenge personal jurisdiction where the summons is improper or the statutory requirements for service of process are not fulfilled.' Stancil v. Superior Court (2021) 11 Cal.5th 381, 402. '[O]nce a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant.' Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.

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3038090 46 CASE NUMBER: CASE TITLE: 118 SOUTH GRAND AVE LP VS RUIS [IMAGED] 37-2023-00035157-CU-UD-CTL C. A party who has not been properly served with a summons has three avenues of relief from a default judgment. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.

First, the party may bring a motion under Code of Civil Procedure section 473.5(a), which applies '[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action.' Such a motion must be brought within a 'reasonable time' not to exceed the earliest of either two years after entry of the default judgment or 180 days after service of written notice that the default or default judgment has been entered. Code Civ. Proc. § 473.5(a).

Code of Civil Procedure section 473(d) provides a second avenue for relief from a default judgment based on improper service. That statute allows the court to 'set aside any void judgment or order.' There is no time limit for bringing an action under subdivision (d) if the judgment can be shown to be invalid on the face of the record. Trackman, 187 Cal.App.4th at 181. However, where a party moves under section 473(d) to set aside a judgment that, although facially valid, is void for lack of proper service, the courts have applied a two-year statutory time limit for bringing such motions, by analogy to the two-year statutory time limit for motions under section 473.5. Id. at 180.

Finally, a court has the inherent authority to set aside a default judgment based on nonstatutory, equitable grounds 'if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case.' In re Marriage of Park (1980) 27 Cal.3d 337, 342. There is no fixed time limit for seeking relief from a default judgment on equitable grounds, provided the party acts with diligence upon learning of the relevant facts.' Trackman, 187 Cal.App.4th at 181.

D. The court is mindful that defendant represent herself. However, her status as a party appearing in propria persona does not provide a basis for preferential consideration. 'A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys.' Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574. '[T]here are no special exemptions from the California Rules of Court or California Code of Civil Procedure for litigants in propria persona.' People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.

3. Discussion and Ruling.

The motion to quash service and set aside the default is denied. Defendant has failed to establish that she was not properly served with the summons and complaint.

'[A] registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.' Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750. Here, the proof of service – executed under penalty of perjury – shows that the process server personally served defendant at her residence at 5:41 p.m. ROA 22. This creates a rebuttable presumption of valid service.

In an attempt to rebut the presumption, defendant contends that she 'noticed there was paperwork taped to [her] front door.' (Ruis Decl., ¶ 2.) But defendant does not deny that she was present at her residence at 5:41 p.m. Nor does she dispute the description of the individual personally served stated in the proof of service. In sum, the court finds that defendant has failed to establish that she was not properly served. See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 ('It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence.'); see also American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (trial court not required to accept 'self-serving evidence contradicting the process server's declaration').

The court will sign the proposed order presented with the opposition papers (ROA 34).

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3038090 46