Judge: Melvin D. Sandvig, Case: 23CHCV03744, Date: 2024-06-28 Tentative Ruling

Case Number: 23CHCV03744    Hearing Date: June 28, 2024    Dept: F47

Dept. F47

Date: 6/28/24

Case #23CHCV03744

MOTION TO QUASH SERVICE OF SUMMONS

Motion filed on 5/23/24.

MOVING PARTY: Defendant Hector Gramajo dba Swiss Cleaners

RESPONDING PARTY: Plaintiff Green Bay Properties, LP

RELIEF REQUESTED: An order quashing service of summons and complaint on Defendant Hector Gramajo dba Swiss Cleaners. 

RULING: The motion is denied. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 12/8/23, Plaintiff Green Bay Properties, LP (Plaintiff) filed this commercial unlawful detainer action against Defendants Hector Gramajo dba Swiss Cleaners (Hector) and Edwin Gramajo dba Swiss Cleaners (Edwin). 

On 1/8/24, Plaintiff filed a proof of service of summons which indicates that after 4 failed attempts to personally serve Hector at the subject property address (9065 Woodman Avenue, Pacoima, CA 91331), Hector was served via substituted service on 12/13/23 at 1:04 p.m. (the fourth attempt) by leaving the summons and complaint and related documents with “Carmen Doe, authorized employee to accept service of process” at the property address and thereafter mailing the documents to the same address. 

On 5/23/24, Hector filed and served the instant motion to quash service of summons which originally had a 1/15/25 hearing date.  On 5/31/24, Plaintiff filed and served an opposition to the motion to quash.  On 6/13/24, the Court granted Plaintiff’s ex parte application to advance the hearing date on the motion to quash and specially set the hearing for 6/21/24 ordering any opposition to be filed by 6/18/24 and any reply to be filed by noon on 6/20/24.  (See 6/13/24 Minute Orders and Nunc Pro Tunc Order).  The Court mailed notice of the ruling on 6/14/24.  (See Certificate of Mailing filed 6/13/24).

On 6/21/24, the hearing was continued to 6/28/24, based on representations that defense counsel was unaware of the 6/21/24 hearing date.  (See 6/21/24 Minute Order).  On 6/21/24, Plaintiff filed and served a Notice of Errata for Plaintiff’s Opposition to the motion.  On 6/26/24, Hector filed and served a reply to the opposition to the motion. 

ANALYSIS

When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process, the plaintiff bears the burden of establishing jurisdiction with facts showing effective service.  See Summers (2006) 140 CA4th 403, 413 citing Dill (1994) 24 CA4th 1426, 1439-1440.  The fact that defendant has notice of the action is not sufficient to confer personal jurisdiction on the defendant.  MJS Enterprises, Inc. (1984) 153 CA3d 555, 557.

Hector contends that he was not properly served in this matter.  Despite the declaration of diligence attached to the proof of service on Hector, Hector contends that Plaintiff did not attempt to personally serve him, as required, before serving him via substituted service.   (See Hector Gramajo Decl.; German Decl.).  Additionally, Hector contends that substituted service on him at the subject address is improper because although he signed a lease for the premises in 2014, that lease expired and he has not worked at the premises for 12 years. (See Hector Gramajo Decl.). 

Plaintiff opposes the motion on the ground that it was scheduled for hearing more than 7 days after the filing of the notice.  See CCP 1167.4.  Plaintiff further contends that Hector was properly served via substituted service as evidenced by the declaration of a California registered process server which creates a presumption that the service was valid.  See Evidence Code 1271; Government Code 26662, 71265; Business & Professions Code 22350; CCP 415.20(b)

CCP 415.20(b) provides:

“If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

The Court finds that the declaration of diligence by California registered process server, Frank Navarro, is sufficient to establish that the summons and complaint could not with reasonable diligence be personally delivered to Hector Gramajo after 4 attempts.  Since Hector was not present on those dates and times, he cannot attest to whether service attempts were made as claimed.  While Carmen Maria Lugo German states that her regular working hours are from 7 am to 5 pm, Monday through Saturday and she claims that she is not aware of anyone coming to the subject premises before 5/8/24 to serve the lawsuit, German does not state that she is the only one present during those times and/or that she was present on the specific dates and times Navarro attempted to personally serve Hector.  (See German Decl.).

Hector’s claim that the subject address is not his business address also does not ring true.  Hector has filed the motion as Hector Gramajo dba Swiss Cleaners indicating that he still does business as Swiss Cleaners which seemingly still occupies the premises.  (See Motion, p.1:25).  Additionally, contrary to Hector’s assertion, the lease he signed in May of 2014 was for 5 years, not 1 year.  (See Complaint, Ex.1, ¶2; Hector Gramajo Decl. ¶7).  Also, the lease provides that if the tenant, with the landlord’s written consent, holds over after the termination of the lease, the tenant becomes a month-to-month tenant.  (See Complaint, Ex.1, ¶19).  Further, Hector’s claim that he has not worked at the premises for 12 years does not make sense because he signed a 5-year lease for the premises approximately 10 years ago, in May of 2014.  (Hector Gramajo Decl. ¶8; Complaint, Ex.1).

For the reasons set forth above, Hector and German’s claims that the summons and complaint were not mailed to the subject address also lack credibility. 

As such, the Court finds that Hector was properly served with the summons and complaint in this action via substituted service.

CONCLUSION

The motion is denied.