Judge: Margaret L. Oldendorf, Case: 23AHCV01703, Date: 2023-10-10 Tentative Ruling

Case Number: 23AHCV01703    Hearing Date: October 10, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

Arcadia Enterprise,

 

                                            Plaintiff,

vs.

 

Yunmen Technologies, Inc.,

 

                                            Defendant.

 

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Case No.: 23AHCV01703

 

 

[TENTATIVE] ORDER

 

Date: October 10, 2023

Time:  8:30 a.m.

Dept.:  P

 

          Defendant’s motion to quash service of summons and complaint is GRANTED.  

            I.          INTRODUCTION

Plaintiff Arcadia Enterprise (Plaintiff) filed an unlawful detainer action against Defendant Yunmen Technologies, Inc. (Defendant) on July 19, 2023. On August 17, 2023, the court granted plaintiff’s application for an order to serve the summons by posting. A proof of service filed September 26, 2023 purports to show service of the summons and complaint on Defendant via posting and mailing.

            Before the Court is a motion to quash service of the summons and complaint filed on August 29, 2023 by specially appearing defendant Yunmen Technologies, Inc.  The motion is made on the grounds that the summons and complaint were not properly served.  For the reasons that follow, the motion is GRANTED.        

           

II.        LEGAL STANDARD

A defendant may move to quash service of summons on the ground that service was invalid. (CCP § 418.10(a).)  “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord, Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”].)   

In an unlawful detainer action, a plaintiff may serve a defendant with the summons and complaint via posting and mailing.  (Code Civ. Proc., § 415.45.) A summons in an unlawful detainer action may be served by posting and mailing if, upon affidavit, it appears that the defendant cannot with reasonable diligence be served in any other manner than publication. (CCP § 415.45(a).)  Upon such application, the court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the defendant and direct that a copy of the summons and of the complaint be sent by certified mail to the defendant at his last known address.  (CCP § 415.45(b).) 

 

III.      ANALYSIS

A.     Plaintiff Failed to Meet Its Burden to Prove Effective Service.

Here, as the defendant is challenging on grounds of improper service of process, the burden is on the plaintiff to establish that service was in compliance with the statute. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.) As no opposition was timely filed, Plaintiff has failed to meet its burden. Therefore, the motion is GRANTED.

 

B.    The Service as Alleged Was Not Effective.

Defendant argues that service was improper because defendant was neither personally served, served by substitute service nor properly served by posting.

Plaintiff’s Proof of Service of Summons was filed on September 26, 2023, and indicates at paragraph 5.d. that Defendant was served “By posting on 8/25/23 at 2:40 PM,” and attached a Certified Mail Receipt indicating that the documents were mailed to Defendant’s address on August 18, 2023.

            Code of Civil Procedure section 415.45 requires the summons to be posted in a manner “most likely to give actual notice to the party.” Per the declaration of Yunmen Technologies’ president, Eduard Simionesco, this was not done. He declares that the summons was left on the ground outside of Yunmen Technologies’ office building, not properly posted. (Decl. of Eduard Simionesco, ¶ 4.)  The summons was only discovered by a visitor to the office. (Id.) Here, Simionesco’s declaration states in ¶ 5 that the summons and complaint were not posted on the premises nor received by mail (there seems to be an error in that paragraph where it should have said defendant instead of plaintiff.) This evidence thus shows that, despite what was indicated in the Proof of Service, the service was not in compliance with CCP section 415.45.

           

IV.     CONCLUSION AND ORDER

The Court grants Defendant’s motion to quash service of the summons and complaint.   Moving party is ordered to give notice.

           

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT