Judge: Olivia Rosales, Case: 22NWCV00400, Date: 2022-08-17 Tentative Ruling

Case Number: 22NWCV00400    Hearing Date: August 17, 2022    Dept: SEC

WASHINGTON v. REID

CASE NO.:  22NWCV00400

HEARING:  8/17/22 @ 1:30 PM

JUDGE:  OLIVIA ROSALES

#Add-On

TENTATIVE RULING

Defendant Reid’s motion to quash service of summons is GRANTED.

Moving Party to give NOTICE.

Defendant Ersell Reid moves to quash service of summons pursuant to CCP § 415.45.

CCP § 415.45 provides:

(a) 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 and that: (1) A cause of action exists against the party upon whom service is to be made or he is a necessary or proper party to the action; or (2) The party to be served has or claims an interest in real property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property.

(b) 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.

(c) Service of summons in this manner is deemed complete on the 10th day after posting and mailing.

(d) Notwithstanding an order for posting of the summons, a summons may be served in any other manner authorized by this article, except publication, in which event such service shall supersede any posted summons.

The Application for Order to Post contains a declaration of due diligence stating that service attempts were made on May 26-30, and June 1, 2022.  Reid has submitted a declaration, attesting that he was home at all times of the claimed attempted services.  (Reid Decl., ¶¶ 5-14; Exs. 1-9.)

Defendant declares that his surveillance systems did not observe any activity during the times allegedly served on May 26-27, and that he was home on May 30 and June 1, 2022, but no one attempted any service.  (Reid Decl., ¶¶ 7-8, 11-12.)  In addition, Defendant has attached photographs showing a birthday party being held at the property on May 28, 2022, with the gates to the home wide open.  (Id., Ex. 9.)  Defendant declared that a dance group was performing at the main driveway performance around 6:30 pm when the purported service occurred.  (Reid Decl., ¶ 9.) Defendant also declares that he does not own a black Mercedes SUV, nor do any of his guests own a black Mercedes SUV, as reflected in the process server’s declaration of due diligence.  (Id., ¶¶ 6-12.)

In opposition, Process Server Richard Steiber declares that each time he attempted service, he was unable to get past the front driveway gate because it was always locked, and there were no responses from the intercom.  (Steiber Decl., ¶ 4.)  Steiber explains that he inadvertently described the vehicle as a black Mercedes SUV, but in actuality it was a black BMW SUV.  (Id., ¶ 5.)  Steiber also attaches a photograph of the locked gate.

The court finds that Defendant has overcome the presumption of valid service.  (Ev. Code 647.)  Defendant’s declaration about his whereabouts are detailed and accompanied by documentary proof that is more credible than the Process Server’s declaration.

Accordingly, sub-service upon Ersell Reid was improper.  The motion is GRANTED.