Judge: Michael E. Whitaker, Case: 24SMCV02485, Date: 2024-07-16 Tentative Ruling

Case Number: 24SMCV02485    Hearing Date: July 16, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

On May 23, 2024, Plaintiff Silver Block Holding Company, LLC (“Plaintiff”) filed an unlawful detainer complaint against Defendants Lajos Gerbino and Edith Molnar (“Defendants.”)  On June 13, 2024, Plaintiff applied for an order to serve the summons by posting, which was granted the same day.

The next day, on June 14, 2024, Defendants moved in pro per to quash service of the summons and complaint.  The Court has not yet received an opposition, although because this is an unlawful detainer action, Plaintiff may file and serve a written opposition the day before the hearing or may make an opposition orally at the time of the hearing.  (California Rules of Court, rule 3.1327(b)-(c).)

LEGAL STANDARDS

A.    SERVICE

“A summons in an action for unlawful detainer of real property may be served by posting 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 any manner specified in this article other than publication[.]”  (Code Civ. Proc., § 415.45, subd. (a).)  “The court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address.”  (Id. at subd. (b).)  Service is complete on the 10^th day after posting and mailing.  (Id. at subd. (c).)

On June 13, 2024, Plaintiff applied for an order to serve Defendants by posting.  That application included a declaration of diligence, outlining several unsuccessful attempts to personally serve Defendants with a copy of the summons and complaint.  Plaintiff’s application to post was granted the same day.

The following day, June 14, Defendants filed the instant motion to quash, arguing that Plaintiff “only left a copy of the first page of the Complaint with one person, and without completing substitute service.”  (Motion at p. 3; Gerbino Decl. at lines 16-18.)

As a threshold matter, the Court finds Defendants’ proof of service for the motion faulty.  It indicates the declarant, Chelsea Cooper served a copy of the notice of motion and motion to Plaintiff’s counsel “AS FOLLOWS. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing.  Under that practice, it would be deposited within U.S. Postal Service on that same day with postage thereon fully prepaid at San Diego, California in the ordinary course of business.  I am aware that on motion of the party served, service is presumed invalid if postal cancellation date of postage meter date is more than one day after the date of deposit for mailing in affidavit.” 

This does not indicate that the declarant actually left the notice of motion and motion anywhere for mailing, or otherwise deposited it in the mail.  Further, declarant does not specify which “firm” or “firm’s practice” the declarant refers to.

Further, to the extent that, at the time Defendants filed the instant motion, Defendants had only received the copy of the summons that had been posted, such conduct would be consistent with service by posting, but such service would not yet have been complete, as service by posting is not complete until 10 days after posting and mailing a copy of the summons and complaint.

CONCLUSION AND ORDER

            Therefore, the Court continues the hearing on the motion to September 23, 2024 at 8:30 A.M. in Department 207.  Defendants shall provide notice of the motion and continued hearing by either personal service or by mail (regular or overnight) on or before July 26, 2024.  Thereafter, Defendants shall file the notice with the Court with a proof of service on or before August 9, 2024.

DATED:  July 16, 2024                                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court