Judge: Melvin D. Sandvig, Case: 23CHCV03775, Date: 2024-10-01 Tentative Ruling

Case Number: 23CHCV03775    Hearing Date: October 1, 2024    Dept: F47

Dept. F47

Date: 10/1/24

Case #23CHCV03775

MOTION TO QUASH SERVICE OF SUMMONS

Motion filed on 2/27/24.

MOVING PARTY: Defendant Ana Maria Velarde

RESPONDING PARTY: Plaintiff Esperanza Ramos

NOTICE: ok

RELIEF REQUESTED: An order quashing the service of summons on Defendant Ana Maria Velarde in this case.

RULING: The motion is granted.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 12/12/23, Plaintiff Esperanza Ramos (Plaintiff) filed this action against Defendant Ana Maria Velarde (Defendant) for: (1) Breach of Warranty of Habitability, (2) Breach of Covenant of Quiet Enjoyment, (3) Nuisance, (4) Civil Code 1942.4, (5) Negligence and (6) Anti-Harassment Ordinance. 

On 2/6/24, Plaintiff filed a Proof of Service of Summons which indicates that Defendant was served with the summons and complaint on 1/25/24 by substituted service on Sal Maldonado at 8919 Woodman Ave, Arleta, CA 91331 and mailing to the same address on 1/25/24.  (See Proof of Service filed on 2/6/24).

On 2/27/24, Defendant filed (served on 2/26/24) the instant motion seeking an order quashing the service of the summons on Defendant.  Plaintiff has not opposed or otherwise responded to the motion. 

ANALYSIS

On or before the last day to plead, or within a further time the court allows for good cause, a defendant may serve and file a motion to quash service of summons on the ground of lack of jurisdiction of the court over the defendant.  See CCP 418.10(a)(1). 

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 purported substituted service of the summons and complaint on Defendant is deficient.  First, the proof of service is not accompanied by a declaration of diligence.  As such there is no evidence before the Court that the summons and complaint could not with reasonable diligence be personally delivered to Defendant, an individual, as required before serving Defendant via substituted service.  CCP 415.20(b).  Second, the relationship of the person served to Defendant is not set forth in the proof of service.  (See Proof of Service filed 2/6/24, No.5.b.).  Defendant states that Solomon Maldonado (Sal) is the listing broker for Defendant and not an agent for service of process on behalf of Defendant.  (See Velarde Decl.).  The motion also seems to indicate that the address where the summons and complaint were delivered to Mr. Maldonado and thereafter mailed is not Defendant’s home or business address address.  (See Motion, p.5:16-17; Velarde Decl.). 

CONCLUSION

The motion is granted.