Judge: Michael Shultz, Case: 22CMUD01165, Date: 2022-10-12 Tentative Ruling

Case Number: 22CMUD01165    Hearing Date: October 12, 2022    Dept: A

22CMUD01165 Remberto Mancilla v. Alfredo S. Osegueda

Wednesday, October 12, 2022 at 8:30 a.m.

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

I.            BACKGROUND

This unlawful detainer action filed on September 15, 2022, arises from a written residential lease agreement signed on November 30, 2019. The complaint alleges that Plaintiff served Defendant with a three-day notice to pay rent or quit that expired on August 17, 2022. Defendant allegedly failed to pay past due rent of $4,400.

II.            ARGUMENTS

Defendant moves to quash service of the summons and complaint because the documents were improperly served. Defendant found the summons and complaint rolled up and stuck into his fence on September 16, 2022, when Defendant came home. Contrary to the allegations of the complaint, Plaintiff did not personally serve the documents on Defendant.

Plaintiff argues that he entitled to a presumption that service was proper where service was accomplished by a registered process server. Defendant failed to rebut this presumption.

III.            DISCUSSION

      Service can be made on an individual, in pertinent part, by personal service, substituted service, or in an unlawful detainer action, by posting and mailing if defendant could not be served in any other matter with reasonable diligence. Code Civ. Proc., §§415.10, 415.20, 415.45. 

Defendant can move to quash service of summons based on the court’s lack of jurisdiction over Defendant. Code Civ. Proc., § 418.10, subd. (a)(1). Plaintiff bears the burden of proving by a preponderance of evidence that "all necessary jurisdictional criteria are met." Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440. This burden is met by competent evidence in affidavits and authenticated documentary evidence. Ziller at 1233. Where service is accomplished by a registered process server, “the return of service establishes a presumption, affecting the burden of production evidence, of the facts stated in the return.” Evid. Code, § 647.

The return of service filed on September 29, 2022, reflects that personal service was accomplished on September 17, 2022, at 10:00 a.m. upon Defendant, Alfredo S. Osegueda. The return is signed by Jeff Bodine, a registered California Process Servicer. Defendant contends that when he come home on September 16, 2022, a day earlier, he came home to find a rolled document in his fence. Motion, .pdf page 3, lines 11-13.

Defendant does not provide any evidence corroborating his location on September 17 at 10:00 a.m. when service was accomplished. Osegueda declaration, ¶ 1. Defendant asserts in his motion that his family members were not at home at the time of service, however, that statement is not made under penalty of perjury, and there is no other declaration to support that no one else was at the home. Motion, .pdf 3, line 24, through .pdf page 4, line 1.

Defendant’s evidence is insufficient to overcome the presumption of proper service. Accordingly, the motion is DENIED. Defendant is ordered to respond to the complaint within five days. Code Civ. Proc., § 1167.4, subd. (b).