Judge: Mark H. Epstein, Case: 23SMCV06010, Date: 2025-02-21 Tentative Ruling

Case Number: 23SMCV06010    Hearing Date: February 21, 2025    Dept: I

This is an ex parte request to stay a writ of possession. 

This case has been plagued by service issues.  Plaintiff contends that it has diligently tried to serve the defense.  Personal service failed, plaintiff states, because no one is home, or at least no one opens the door.  That has led to requests to serve by posting.  Requests have been granted, but defendant contends that the service was inadequate because in fact there were no attempts at personal service and the posting was inadequate and not followed by proper mail.  The court’s suggestion that the parties agree that service is complete as of a hearing date on the question so that defendant could answer and get to the merits was rejected by the defense (repeatedly).  That was a bit troubling to the court because the court had agreed with the defense that the case would not go forward on a regular UD track because the defense was alleging that plaintiff actually was the property’s owner and that the various actions that had taken title away from defendant were accomplished by fraud.

At each of these hearings, the court agreed with the defense that plaintiff had not adequately proven proper service.  Accordingly, the court believes that at one point it suggested that the next attempt to serve be filmed and that plaintiff have iron clad proof that the service was valid.  The court was of the view that if plaintiff made absolutely sure that service was proper, defendant would not contest service and the case could go forward. 

In its most recent iteration, plaintiff alleges that it attempted personal service four times and then obtained approval to serve by posting.  The process server claims that proper posting was done and that the papers were mailed.  Defendant did not answer and plaintiff obtained a default and a writ of possession issued.  The Sheriff served the writ, but the matter was stayed by ex parte request made by defendant on Friday, February 14, 2025.  Defendant contends that there is video footage showing that at the times the process server claimed to have knocked at the door, in fact the process server was not there, thereby calling into question the attempts at personal service.  Defendant also contends that the package of materials posted at the door (actually placed within the door handle) did not include the summons or complaint and that nothing was mailed.

At the hearing on Friday, the court stated that if service was improper, then it was improper, and the court might even consider simply dismissing the case.  On the other hand, if service was proven proper, then the court was inclined to believe that defendant’s decision not to respond was tactical—a strategy to delay the case and not get to the merits, which would be consistent with the way the defense has behaved throughout the litigation.  The long and short of it is that defendant has the right to due process of law and to make sure that the plaintiff dots i’s and crosses t’s.  If plaintiff cannot serve the papers properly, then defendant is under no obligation to respond.  On the other hand, if the defense is going to insist on strict adherence to the rules, then that stratagem will apply with equal force against the defense.  It does not go one way only, where the defense can insist that the rules be followed to the letter but insist that it be given leeway when it fails to follow the rules.

The court continued the matter to today.

The court has not seen defendant’s purported video showing that no one was at the door.  The court actually tried to follow the link defendant provided, but there was no such site—at least at the time the court tried it.  Plaintiff claims the same problem.  On the other hand, stuffing some rolled up documents at the front door is not cutting it either.  The court told the plaintiff what to do.  There are ways to have proof positive of service.  For example, filming the attempts at personal service with something that has a date and time stamp will do.  Having a clear video or picture with a date and time stamp of what is posted at the door such that the documents are visible is strong evidence.  Filming the placement of documents into an overnight delivery package including the tracking number is hard to question.  Those things, combined, would make a very compelling case that service was proper.  Defendant can also establish her position.  She claims to have time stamped video of the front door at the time the process server claims to have attempted service that shows no one at the door.  But the court has not seen the video and defendant’s purported link to it does not work.

So at the moment, the court has nothing that tells the tale in a way that eliminates doubt.  The process server’s declaration is not sufficient to do that.  In a case where the plaintiff knows service is being challenged, the regular rules just don’t work well.  Yet plaintiff has seemingly deliberately chosen not to serve the summons in a way that eliminates this issue.  On the other hand, defendant claims to have proof but has yet to present it.  Rather, defendant talks a good game, but when the time comes to provide proof, it is missing.  Worse, this is all for no good substantive reason.  This is not a case where the defense does not know it is being sued for unlawful detainer.  The defense has known for months and actually does have (the court presumes) knowledge of the complaint and its contents.  This is just the defendant trying to delay going forward.  In the court’s experience, that is usually the tactic employed by one who knows they are wrong on the merits—those who feel they will prevail on the merits generally want to get to a jury and prove their case.  But it could be that defendant has other motives.  The court is not a mind reader, and the court will draw no conclusions as to defendant’s tactics. 

The court is exasperated.  The court is inclined to recall the writ, vacate the default, but say that it will credit the process server’s account and deem that the matter has been properly served.  But because the evidence is not iron-clad due to plaintiff’s decision not to produce any iron-clad evidence, the court will allow the defense to answer or otherwise respond, which it must do within 5 court days of today.  On day six, if no answer is filed, the court suspects that plaintiff will seek a default.  Defendant does not want to be in the position of moving to vacate the default again because the failure to answer can only be viewed by the court as a deliberate attempt for further delay such that it will be very hard for defendant to argue that there should be any further relief should a default be entered, possession be granted, and a writ issued.