Judge Mark E. Windham, Case Number: 22STLC07062, Date: 2024-02-26 Tentative Ruling

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Specially Appearing Defendant Lani Hay’s Motion to Quash Service of the Summons and Complaint is DENIED. DEFENDANT IS TO FILE A RESPONSIVE PLEADING TO THE COMPLAINT WITHIN 20 DAYS’ NOTICE OF THIS ORDER.

On October 24, 2022, Plaintiff 1012 2nd Street, LLC (“Plaintiff”) filed an action against Defendant Lani Hay (“Defendant”) for breach of contract. On November 14, 2022, Plaintiff filed Proof of Service of Summons and Complaint by personal service. (Proof of Personal Service, filed 11/14/22.) On December 9, 2022, Defendant filed a Motion to Quash Service of Summons, which the Court granted on January 5, 2023. (Minute Order, 01/05/23.)

On August 24, 2023, Plaintiff applied for an order for service by publication, which the Court granted. (Order for Publication, 08/28/23.) On November 07, 2023, Defendant filed the instant Motion to Quash Service of Summons by Publication. Plaintiff filed an opposition on November 28, 2023 and Defendant replied on December 5, 2023.

On January 24, 2024, the case was transferred from Department 25 in the Spring Street Courthouse to Department 26 in the Spring Street Courthouse.

“‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.) “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.) Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

“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 move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service. (Code of Civ. Proc. § 418.10, subd. (a)(1). A defendant has 30 days after the service of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20, subd. (a)(3).) “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.)

The Motion argues that service by publication was defective because Plaintiff knew Defendant’s address was ascertainable. Plaintiff refutes this, stating that Defendant has been evading service and attaches the declaration in support of the application for publication. (Opp. Exh. 2, Watson Decl.) Plaintiff’s counsel avers that on December 22, 2022, he filed proof of service by certified mail on Defendant at her Virginia residence, but she had refused to sign for the certified mail. (Id. ¶4) Plaintiff additionally provides the declaration of Steven Connor, a non-registered California process server, who states that on November 11, 2022, he personally served Defendant at her California address, and later identified her through a photograph. (Opp. Ex. 2, Steven Connor Decl.) Plaintiff withdrew that service to avoid costs because Defendant intended to challenge the papers as having been delivered to a friend. (Id. at ¶4.) Additionally, Connor states that on February 15, 2023, he mailed two (2) copies of the summons and complaint to both Defendant’s California and Virginia addresses but received no notice of acknowledgment from either address. (Id.)

A summons may be served by publication 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 another manner specified in this article and that either:

(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.

(2) The party to be served has or claims an interest in real or personal 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 the party from any interest in the property.

(Code Civ. Proc., § 415.50.) Defendant’s Motion argues that Plaintiff has known of her residential address and therefore did not exhaust all other avenues of service, as required. (Citing Code Civ. Proc., § 415.50; Perez v. Smith (1993) 19 Cal.App.4th 1595, 1598.) In support of her motion, Defendant cites Watts v. Crawford to argue that where a defendant’s address is ascertainable, “a method of service superior to publication must be employed, because constitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort.” (Watts v. Crawford (1995) 10 Cal.4th 743, 749 fn 5.) The Watts court, however, did not address the question of whether service by publication is proper if there is evidence that the defendant is trying to evade service

The Motion also does not explain why Defendant sought to challenge personal service of the Summons despite later confirmation by the process server that service was to the correct person. Nor does Defendant explain why she refused to sign the certified mail receipt when the papers were mailed to her California and Virginia residences in February 2023. Plaintiff, therefore, has demonstrated that Defendant has avoided its attempts at personal and mail service. It is clear from Plaintiff’s evidence that it had, on multiple occasions, attempted to render service on Defendant at both Defendant’s California and Virginia residences. Thus, Plaintiff’s application to serve Defendant by publication was proper because it could not “with reasonable diligence” serve Defendant in another manner. (Code of Civ. Proc., § 415.50, subd. (a).) Accordingly, Defendant has not shown that Plaintiff’s service by publication was improper.