TENTATIVE RULING

Calendar:    6

Date:          4/21/2023 

Case No: 22 GDCV00026 Trial Date: Oct. 2, 2023 

Case Name: Excelsior at the Americana at Brand Homeowners’ Association v. Van Richter

MOTION TO RECOVER COSTS OF SERVICE 

OF PROCESS

 

Moving Party:            Plaintiff Excelsior at the Americana at Brand Homeowners’ Association 

Responding Party: Defendant Paul Van Richter 

RELIEF REQUESTED:

Order allowing Excelsior HOA to recover the costs incurred in personally serving the summons and complaint on Paul Van Richter.

SUMMARY OF FACTS:

Plaintiff Excelsior at the Americana at Brand Homeowners’ Association (Excelsior HOA) alleges that it is a California mutual benefit non-profit corporation which is owned by and composed of its members and owners within the community known as The Excelsior at Americana (Excelsior).  Plaintiff alleges that there are 100 owner members, and that defendant Paul Van Richter is the trustee of the Paul J. Abramson Trust, the owner of real property Unit 676 at Excelsior, and a member of Excelsior HOA.  Plaintiff alleges that Van Richter resides at the subject unit. 

Plaintiff alleges that every condominium unit at the property is governed by the Excelsior HOA Covenants, Conditions and Restrictions (CC&Rs), pursuant to which Excelsior HOA is responsible for repairs of common areas at the property.   In 2020, plaintiff completed a major construction defect lawsuit, which included claims for defects and damages related to the master bedroom showers leaking into the adjacent common area walls and sub-floors between residences, deterioration of cast iron pipes due to hydrogen sulfide gas corrosion, and missing fire stopping in the fire rated walls between the residences.  The repairs will require the removal and replacement of the master bathroom shower, replacement of the cast iron pipes, and the installation of fireproofing between the residences, which repairs will take place inside all of the residences and cannot be done solely from the exterior of the residences. 

Plaintiff alleges that it has sent notice to the residents concerning a schedule of inspections to take place inside the residences, to be completed November 1-12, 2021, Monday through Friday, lasting about thirty minutes.  Van Richter has contacted the reconstruction company to not contact him for access to his unit, has informed Excelsior HOA’s consultants that he had no issues in his residence and the issues were all repaired, which plaintiff alleges is not possible because the problems are located in the common areas and defendant has not obtained approval for construction in his residence as required by the CC&Rs. Defendant’s home, Unit 676, has not been inspected as defendant refused to grant access for inspections, in violation of the CC&Rs section concerning Right of Entry of the Association, and Excelsior HOA seeks an order from the court to defendant to vacate his unit for the duration of inspection and repairs of his unit and that the Excelsior HOA be permitted access to his unit to perform the repairs that are being made at all other units at the Excelsior.   

The complaint also alleges causes of action for fraud and abuse of process based on allegations that defendant has filed two small claims complaints, in March of 2021 and November of 2021, in which defendant has falsely represented to the court that the claims had been served on plaintiff.   These causes of action were the subject of a special motion to strike which the court heard on October 7, 2022.  The motion was granted and the causes of action were ordered stricken with prejudice from the verified complaint. 

Defendant Van Richter, individually and as trustee, has filed a cross-complaint, naming plaintiff Excelsior HOA as cross-defendant, alleging that Excelsior HOA has breached the CC&Rs by directing or being compliant in allowing management servicer First Service Residential on May 11, 2020 to terminate all its management duties and services exclusively to Van Richter.  The cross-complaint alleges a cause of action for breach of contract, as well as a cause of action for declaratory relief, in which cross-complainant seeks a declaration that Excelsior HOA is in violation of the CC&Rs by continuing to require Van Richter to pay $716.86 per month for residential services such as onsite property management, concierge, janitorial, engineering and security, while Van Richter is being denied any of these services.   

ANALYSIS:

Plaintiff Excelsior HOA brings this motion to recover the costs of service of process on defendant Van Richter, arguing that plaintiff attempted to serve plaintiff by mail with an Acknowledgement of Receipt to avoid service costs, but that Van Richter chose not to return the Acknowledgement of Receipt, so that plaintiff was forced to incur costs to effect service, which are recoverable under CCP section 415.30 (d).   

Under the Code, to obtain personal jurisdiction over a defendant by mail, a plaintiff may follow the procedures set forth in CCP section 415.30: 

“(a) A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.”

Subdivision (b) requires that the notice and acknowledgment be in a specified form, including that the Notice include the language:

“Failure to complete this form and return it to the sender within 20 days may subject you (or the party on whose behalf you are being served) to liability for the payment of any expenses incurred in serving a summons upon you in any other manner permitted by law.” 

Under subdivision (c):

“Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.”

Plaintiff indicates that it followed the procedures for service of the summons and complaint by mail here, as it sent to defendant Van Richter at his residence by first class mail, postage prepaid, a copy of the summons and complaint, two copies of the Notice of Acknowledgment and Receipt of Summons form, and a self-addressed, postage prepaid return envelope.  [Levine Decl., para. 2].  Plaintiff also indicates that based on the Excelsior HOA records, the address to which the documents were sent is defendant’s residence address.  [Levine Decl., para. 2].  

The moving papers submit a Notice and Acknowledgment of Receipt- Civil completed and signed by counsel for this action dated February 22, 2022, and a United States Postal Service receipt dated February 22, 2022, showing postage was paid for a 6x9 envelope as well as separately for flat rate priority mail mailing, with an expected delivery date of 02/25/2022, with a tracking number.  [Exs. 2, 3].  This showing appears to support the declaration indicating that the mailing included an Acknowledgment of Receipt conforming to the Code, that the return envelope included return postage, and that the mailing was made by mail as represented.  

Plaintiff indicates that plaintiff did not receive from defendant the executed Notice and Acknowledgment of Receipt within twenty days after mailing.  [Levine Decl., para. 3]. 

While it is recognized that there is no requirement that a party accept service of process in this manner, if a defendant chooses not to accept service of process in this manner, defendant is subject to the provision of CCP section 415.30 (d), which provides:

“If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses whether or not he is otherwise entitled to recover his costs in the action.”

Case law confirms that under section 415.30, authorizing service of summons by mail, if a party addressed fails to return acknowledgment of service, there is no effective service, but the party becomes liable for reasonable expenses of service in a more conventional manner.  Thierfeldt v. Marin Hospital Dist. (1973) 35 Cal.App.3d 186, 199. 

Weil and Brown note that under this statute, the notice form:

 “gives defendants the chance to avoid the costs involved in effecting service by some other method. Therefore, if they fail to sign and return the acknowledgment within 20 days after it is mailed, they become liable for whatever costs plaintiff incurs in effecting service by some other method—regardless of the outcome of the lawsuit.

Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2022 rev.) section 4.240, italics in the original.  

Weil & Brown also point out that plaintiff may obtain  reimbursement on motion, “and the court shall order such reimbursement ‘except for good cause shown.’”  Weil & Brown, supra, at section 4.242, quoting CCP section 415.30(d), italics in the original. 

The statute accordingly appears to shift the burden to defendant in such circumstances to establish good cause for not awarding the reasonable costs incurred in effecting proper service on defendant.  

Defendant here in opposition argues that he did not receive the mailing.  Defendant submits his declaration stating that, “To my knowledge I have never received a copy of the summons and complaint against me along with two copies of the notice and acknowledgment and a self-addressed stamped envelope by US mail or by any other courier delivery service.”  [Van Richter Decl., para. 2].  Defendant attaches an email he received attaching ex parte papers and the complaint on February 25, 2022, and argues that this email makes no mention of the previous service by mail.  [Van Richter Decl., Ex. 1].  Defendant also submits the declarations of two attorneys who have represented defendant in this action, who testify that they do not recall ever being informed that plaintiff mailed a copy of the summons and complaint to defendant, despite communications with the attorney for plaintiff.  [Buscemi Decl., paras. 3, 4; Gebelin Decl., para. 5].  

The statute does not mention receipt of the mailing, and, in any case, defendant further concedes in his declaration that throughout this lawsuit he has taken the position that plaintiff was required to meet and confer with him pursuant to the spirit of the Sterling Davis Act, so defendant never stipulated to process of service by electronic means and has required plaintiff to follow the rule of law.  [Van Richter Decl., para. 4].  Counsel representing defendant prior to service by publication also testifies that he informed counsel for plaintiff that he was not authorized to accept service on the part of Van Richter.  [Buscemi Decl., para. 3].  

Given that the service by mail was not effective until the acknowledgment was returned, the court does not find it surprising that there was no further mention of that mailing by plaintiff in connection with persuading defendant or his attorneys that plaintiff had effected proper service.  The court also finds plaintiff’s statement that to his “knowledge” he did not receive the mailing is evasive and not a clear statement that the mailing was not received at plaintiff’s residential address within the Excelsior complex.  There have been numerous service attempts in this matter which defendant has evaded, ultimately necessitating service by publication.   The court finds that defendant has failed to establish good cause for the court to not award to plaintiff the expenses awardable under CCP section 415.30(d). 

The expenses sought are $3,564.50.  Specifically, plaintiff seeks (1) service charges since February 22, 2024, including charges for a stakeout on March 4, 5, and 7, 2022, and substituted service in the sum of $2,109.50, (2) charges for attempts of personal service on May 20, 21, 24, 25 and 26, 2022 of $133.00, and (3) charges for service by publication in the sum of $1,322.00.  Receipts are attached to the motion at Exhibits 4 para. 7 (d), Exhibit 8, pp. 3 and 4, and Exhibit 9. 

It appears that some of the charges were incurred before the twenty-day time to accept service by mail had expired.  Specifically, the service by mail was made on February 22, 2022.  Twenty days from that date would have been March 14, 2022.  The stakeouts from March 4 through 7, 2022 were accordingly not necessitated by the failure to return the acknowledgment within the permitted 20 days.  

Plaintiff’s proof of substituted service shows that substituted service was made at plaintiff’s residence on March 7, 2022, with follow up mailing on March 8, 2022.   This substituted service was also made before the time for defendant to accept service by mail had expired.  

Specifically, CCP section 415.30(d) provides that if “the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter…”  CCP section 415.30 (d), emphasis added.  

The subject expenses were not “thereafter incurred,” after the 20-day period had passed, and court does not find that those costs, in the sum of $2,109.50, are awardable under the statute. 

The remaining costs, incurred after the date defendant was permitted to return the acknowledgment and accept service by mail had expired, are properly awarded under the statute.  Defendant argues that plaintiff should at most be awarded the costs after the motion to quash was granted, as the court granted that motion and found that the service by substituted service had not been properly made.  The court notes that the statute provides for liability for “reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter.”  CCP section 415.30 (d), emphasis added.  This wording suggests that even an unsuccessful attempt, for whatever reason, would give rise to liability for expenses under the statute.  This argument need not be addressed, however, given the court’s determination that the subject expenses are not recoverable on the ground they were incurred prior to the time when the deadline for returning the acknowledgment had expired.  

Defendant argues that the costs for service by publication are excessive and unreasonable, as defendant has located pricing at the Los Angeles Daily Journal which would have cost only $237.26, much less than the Los Angeles Times price of $1,322 sought by plaintiff.   

The court does not find the costs charged by the Los Angeles Times unreasonable, given the likelihood that the Los Angeles Times would reach the attention of a wider population than that reached by the Daily Journal.  The court also does not find it unreasonable that plaintiff chose to effect service by publication through the Los Angeles Times, with advance permission from the court, which was done for the stated reason that it would be most likely to give notice to defendant because the Los Angeles Times is the biggest circulating newspaper that services Glendale, California.  [See Application for Publication, filed 06/02/2022; Order for Publication, signed and filed 06/07/2022].   The court previously has found, and again finds, that this reason is reasonable.  

The court accordingly awards in favor of plaintiff and against defendant the reasonable expenses incurred by defendant in serving or attempting to serve defendant by another permitted service method in the reasonable sum for attempts at personal service on May 20, 21, 24, 25 and 26, 2022 of $133.00, and in the reasonable sum for service by publication of $1,322.00.   The total expenses awarded are $1,455.00.

RULING:

Motion to Recover Costs of Service of Process is GRANTED.

The Court finds pursuant to CCP section 415.30 (d) that defendant Paul Van Richter is a person to whom a copy of the summons and complaint were mailed pursuant to CCP section 415.30, and who failed to complete and return the acknowledgment form within 20 days.  

Pursuant to subdivision (d), defendant Van Richter is accordingly liable for the reasonable expenses thereafter incurred by plaintiff in serving or attempting to serve defendant by another method permitted under the Code.

The Court finds those reasonable expenses incurred to include expenses incurred for attempts at personal service on May 20, 21, 24, 25 and 26, 2022 in the sum of $133.00, in addition to expenses incurred for service by publication in the reasonable sum of $1,322.00, for a total expense award of $1,455.00.  The sum of $1,455.00 is awarded in favor of moving party, plaintiff Excelsior at the Americana at Brand Homeowners’ Association and against defendant Paul Van Richter.  

 

  DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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