Judge: Mark E. Windham, Case: 22SMCV00330, Date: 2023-02-22 Tentative Ruling
Case Number: 22SMCV00330 Hearing Date: February 22, 2023 Dept: 26
MOTION
TO QUASH SERVICE
(CCP § 418.10)
TENTATIVE RULING:
Specially Appearing Defendant Heather
Naylor’s Motion to Quash Service of the Summons and Complaint is GRANTED.
ANALYSIS:
On March 8, 2022, Plaintiff SM 10000 Property LLC (“Plaintiff”) filed this action for breach of lease agreement
against Defendant Heather Naylor (“Defendant”). The case was originally assigned to an unlimited
jurisdiction courtroom. Plaintiff filed a proof of substitute service of the
Summons and Complaint on April 18, 2022. Defendant’s first motion to quash
service of the Summons and Complaint (“the First Motion to Quash”) was granted
by the unlimited jurisdiction court on July 7, 2022. (Minute Order, 07/07/22.)
Specifically, the court ruled that service of the Smmons and Complaint at a
post office box was appropriate but that Plaintiff did not demonstrate due
diligence at personal service. (Ibid.)
Plaintiff filed a First Amended Complaint on October 6,
2022 and on Novmeber 16, 2022, the case was transffered to the limited
jurisidction court. (Minute Order, 11/16/22.) Plaintiff filed a proof of
substitute service of the Summons and First Amended Complaint on November 18,
2022.
Defendant, specially appearing, filed the instant
Motion to Quash Service of the Summons and Complaint on December 13, 2022.
Plaintiff filed an opposition on February 6, 2023 and multiple declarations of
diligence the next day.
Concurrent with the proceeding in this action, Defendant
filed a Small Claims action against Plaintiff, under LASC Case No. 22SMSC00457,
on March 16, 2022. The Small Claims action was resolved in favor of Defendant
on December 5, 2022. (LASC Case No. 22SMSC00457, Minute Order, 12/05/22.)
Plaintiff has appealed the Small Claims judgment and the trial de novo is set
for March 15, 2023.
Evidentiary Objections
Defendant’s evidentiary objections are ruled on as
follows:
·
To
Petrossian Decl.: overruled
·
To Brown
Decl.: sustained
·
To Exh.
B of Notice of Lodging: sustained
·
To Olsen
Decl.: overruled as to ¶12 and sustained as to ¶¶16-17
·
To
Request for Judicial Notice: overruled
·
To
Declarations of Due Diligence: overruled
Request for Judicial Notice
Plaintiff’s request for judicial notice of filings from
this action and the Small Claims court action between the parties, Naylor v.
SM 10000 Property LLC, LASC Case No. 22SMS00457, is granted pursuant to
Cal. Evidence Code section 452, subdivision (d). (See RJN, Exhs. C, F, I, J, L,
M, N, O, R, S, and U.) Plaintiff’s request for judicial notice of United
States Postal Service Application for Delivery of Mail through Agent
purportedly signed by Defendant, is denied. (See id. at Exh. T.)
Discussion
“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),
emphasis added.) The Motion was timely filed on December 13, 2022.
Where service is challenged, the burden is on the plaintiff
to prove the facts requisite to an effective service. “When a defendant
challenges the court’s personal
jurisdiction on the ground of improper service of process ‘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; see also Lebel v. Mai
(2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service
containing a declaration from a registered process server invokes a rebuttable presumption
affecting the burden of producing
evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American
Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383,
390.) Here, the
challenged proof of service was attested to by a registered process server, and
therefore, is entitled to a presumption of truth. (Proof of Service, filed 11/18/22,
¶7.)
The proof of service indicates that Defendant was
sub-served by delivery of the Summons and Complaint on November 16, 2022 at
2:30 pm to “Anthony Vaca, Clerk @ Burbank Shipping Center” located at 1812
Burbank Blvd., Burbank, California. (Proof of Service, filed 11/16/22, ¶¶3-5.) The
proof of service is accompanied by a declaration of diligence indicating one
attempt at personal service on November 16, 2022 at 2:30 pm. (Id. at p.
2.)
Defendant challenges the proof of service on several
grounds. First, Defendant argues that Plaintiff has the burden on demonstrating
proper service. This is incorrect for the reasons discussed above. The burden
is on Defendant to demonstrate that service did not comply with the
statutory requirements of Code of Civil Procedure section 415.20. Defendant
next argues that service to the mailing center was not proper because the proof
of service did not indicate a specific box number. The Court finds Defendant is
estopped from making this argument because the mailing address she provided to
the Small Claims court matches the service address. Specifically, Defendant’s
address on record with the Small Claims court as of September 13, 2022 was
30745 Pacific Coast Hwy #310, Malibu, California. (Opp., RJN, Exh. M.)
Following the trial held on November 16, 2022, Defendant’s address was updated
with the Small Claims court to 1812 Burbank Blvd., Burbank, California, with no box number
indicated. (Id. at Exh. O.) The lack of a box number is no scrivener’s
error, as Defendant contends. Instead, Defendant reiterated that this was her
address, with no box number indicated, in the ”Request for Court Order” filed
with the Small Claims court on January 11, 2023. (Opp., RJN, Exh. U, p. 3.)
Therefore, service upon Defendant at 1812 Burbank Blvd., Burbank, California is deemed proper.
Additionally, Defendant argues that service at the
mailbox service location is improper because the service did not comply with
the requirements of Business & Professions Code section 17538.5. The
declaration of the Monique Petrossian, Burbank Shipping Center manager,
however, indicates that the documents served on November 16, 2022 were placed
in Defendant’s box, number 7265, and that currently, those documents are not in
the box. (Opp., Petrossian Decl., ¶¶3-7.) In fact, the records indicate that
the Summons and Complaint were picked up. (Id. at ¶¶8-9 and Exhs. 2-4.)
This demonstrates compliance with the requirement that Burbank Shipping Center
place the documents in the customer’s mailbox within 48 hours of receipt. (Bus.
& Profs. Code, § 17538.5, subd. (d)(1).)
The remaining issue is whether Plaintiff was suffciently
diligent in attempting service at Burbank Shipping Center prior to leaving the
papers with the clerk. Code of Civil Procedure section 415.20 requires
reasonable diligence in accomplishing personal service before resorting to substitute
service at a person’s usual mailing address. (Code Civ. Proc., § 415.20, subd.
(b).) However, “if the only address reasonably known for the person to be
served is a private mailbox obtained through a commercial mail receiving
agency, service of process may be effected on the first delivery attempt . . .
.” (Code Civ. Proc., § 415.20, subd. (c).)
The declaration of diligence attached to the proof of
service only shows that the process server made a single attempt at personal
service before leaving the Summons and Complaint with the person in charge at
1812 Burbank Blvd., Burbank, California. This would be proper if the service
address was to only address reasonably known for Defendant. However, in
September 2022, Defendant had indicated her address was 30745 Pacific
Coast Hwy #310, Malibu, California.
Plaintiff filed four declarations of diligence on
February 7, 2023. None of the declarations of diligence pertain to the service
address or to the Pacific Coast Highway address most recently on file with the
Court. (Decls. of Diligence, filed 02/07/23.) The most relevant declaration of
diligence shows attempts at service in October 2022 to 2924 Alturas Street, Los
Angeles, California. (Decl. of Diligence, filed 02/07/23.)
Plaintiff, therefore, has not shown the necessary diligence
with respect to the Defendant’s recent addresses. Nor does the opposition
explain how these declarations of diligence demonstrate compliance with the
service requirements of Code of Civil Procedure section 415.20, subdivisions
(b).
Conclusion
Therefore, Specially Appearing Defendant
Heather Naylor’s Motion to Quash Service of the Summons and Complaint is GRANTED.
Court clerk to give notice.