Judge: Mark E. Windham, Case: 22STLC02680, Date: 2022-12-21 Tentative Ruling
Case Number: 22STLC02680 Hearing Date: December 21, 2022 Dept: 26
MOTION
TO QUASH SERVICE; DISMISS ACTION
(CCP § 418.10)
TENTATIVE RULING:
Specially Appearing Defendant David
Shaker’s Motion to Quash Service of the Summons and Complaint and to Dismiss
Action is DENIED.
DEFENDANT IS TO FILE A RESPONSIVE
PLEADING WITHIN 30 DAYS OF THIS ORDER.
ANALYSIS:
On April 18, 2022,
Plaintiff April 26th, LLC (“Plaintiff”) filed
the Complaint in this action for unpaid rent against Specially Appearing David
Shaker (“Defendant”). Proof of Service by Substitute Service was filed
on July 27, 2022. On the same date, Defendant filed
the instant Motion to Quash Service of the Summons and Complaint and Dismiss
Action. Plaintiff filed an opposition on December 8, 2022 and amended
opposition on December 9, 2022.
Discussion
Quash Service of the Summons
and Complaint
“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.)
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.)
Defendant moves to quash service of the Summons and
Complaint on the grounds that the declaration of substitute service is false.
The proof of service states that Defendant was sub-served by leving the papers
with “John Doe – Person in Charge” at 9025 Wilshire Blvd., #304, Beverly Hills,
California on May 25, 2022 at 12:50 pm. (Proof of Service, filed 07/27/22, ¶¶4-5.)
The proof of service includes a declaration of diligence and indicates the
papers were also mailed to the service address on the same date, making service
effective on June 4, 2022. (Id. at Decl. of Diligence; Code Civ. Proc.,
§ 415.20.)
The proof of substitute service is attested to by a
registered process server. (Id. at ¶7.) Therefore, the burden of overcoming
the truth of the facts in the proof of service falls to Defendant. Defendant
submits a declaration stating that he has never been personally served with the
Summons and Complaint and never given anyone authority to accept service in
this case. (Motion, Shaker Decl., ¶¶2-3.) This does not disprove that sub-service
did not take place as stated in the proof of service. Defendant’s declaration
offers no facts that would disprove that substitute service, by leaving the
papers with “John Doe — Person in Charge,” took place. Nor is a party expressly
required to authorize another person to accept service on their behalf for
valid substitute service. The service statutes allow the Summons and Complaint
to be left with the person in charge of the office, if that is where the papers
were delivered. (See Code Civ. Proc., § 415.20.)
Defendant has not overcome the presumption of truth of the
facts stated in the proof of service, nor otherwise shown that the Court should
find good cause for the timing of the Motion, which was filed after Defendant’s
last day to respond to the Complaint. Therefore, Defendant’s request to quash
service of the Summons and Complaint is denied.
The Court does note that scheduling the hearing on the Motion
to Quash more than 30 days after it was filed is not grounds to deny the Motion,
contrary to the argument in Plaintiff’s opposition. (See Olinick v. BMG
Entertainment (2006) 138 Cal.App.4th 1286, 1296.)
Dismiss Action
Defendant also moves to dismiss the action as improperly
filed despite a moratorium on actions to evict tenants or collect back rent.
However, Defendant provides no citation to the relevant moratorium. (Motion, p.
10:11-25.) The Motion only refers to a portion of the purported moratorium that
allows for sanctions, but again, provides no citation. (Id. at pp.
2:23-3:7.) The request to dismiss the action, therefore, is also denied.
Conclusion
Specially Appearing Defendant David
Shaker’s Motion to Quash Service of the Summons and Complaint and to Dismiss
Action is DENIED.
DEFENDANT IS TO FILE A RESPONSIVE
PLEADING WITHIN 30 DAYS OF THIS ORDER.
Plaintiff to give notice.