Judge Ralph C. Hofer, Case Number: 24NNCV01082, Date: 2024-06-21 Tentative Ruling

Plaintiff California Community Housing Agency brings this complaint for unlawful detainer, alleging that defendants Inbal Waldman and Harel Waldman are in possession of premises on Colorado Street in Glendale pursuant to a written term lease. The First Amended Complaint alleges that the tenancy has been terminated for at-fault just cause, as defendants was served with a 3 day notice to pay rent or quit on April 16, 2024, and defendants failed to comply with the requirements of the notice by the noticed date.

Plaintiff seeks possession of the premises, costs, past-due rent of $37,788.00, attorney fees, forfeiture of the agreement, and damages at the rate of $103.53 from May 1, 2024 for each day that defendants remain in possession through entry of judgment.

Specially appearing defendant Inbal Waldman seeks to quash service of the summons and complaint on defendant, arguing that defendant was not personally served with the summons and complaint, but that the summons and complaint were posted on her front door despite the fact that no order to post had been requested by plaintiff, and no order to post had been granted by the court.

CCP § 418.10 permits a defendant, on or before the last day of his or her time to plead, to serve and file a notice of motion to quash service of summons “on the ground of lack of jurisdiction of the court over him or her.” § 418.10(a)(1).

With respect to a motion to quash for lack of jurisdiction, the burden is on plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Mihlon v. Superior Court (1985, 2nd Dist.) 169 Cal.App.3d 703, 710; Ziller Electronic Labs GmbH v. Superior Court (1988, 2nd Dist.) 206 Cal.App.3d 1222, 1232-1233.

Where the parties’ evidence conflict on the jurisdictional facts, the trial court must determine credibility. Its decision will not be disturbed on appeal as long as it is supported by substantial evidence. Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.

Defendant Inbal Waldman submits a declaration indicating that the proof of service filed by plaintiff alleges that defendant was personally served on April 28, 2024, but that this assertion is not true. It is not clear what proof of service defendant is referring to, since, as mentioned, there is no proof of service in the file.

Plaintiff in opposition argues that defendants were served by a registered process server, who made four attempts to serve defendants from April 24 through April 27, 2024, and that on April 27, 2024, the process server personally served a “Jane Doe,” who “Refused Name,” described as “Fem 40s 5’5 140 Drk. Hair.”

“(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,… 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 burden is on the plaintiff to show that reasonable attempts were made to serve personally before resorting to substituted service. Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801. Two or three attempts at personal service at a proper place ordinarily qualifies as “reasonable diligence,” and allows substituted service to be made. See Espinolda v. Nunez (1988) 199 Cal.App.3d 1389, 1392.

Proofs of service are attached to the opposition and are executed under oath by a person identified as a registered process server. As noted above, this gives rise to a rebuttable presumption that the service was made as represented.

Moving defendant in the motion has submitted sufficient evidence to rebut the presumption, as she denies ever having been personally served, or having been served other than by the documents tacked to her door and left at the doorstep. This shifts the burden back to plaintiff to establish by admissible evidence that service was properly made.

The proof of service on co-defendant Harel Waldman appears in order, showing substituted service by personal service on the adult Jane Doe occupant of the residence, and is accompanied by a declaration of diligence showing three service attempts prior to the substituted service being made, and also accompanied by a declaration showing follow up mailing. That defendant has evidently not filed a motion challenging the sufficiency of service, so the service is subject to the process server presumption.

The proof of service on moving defendant Inbal Waldman also purports to prove service on that defendant by substituted service by personal service on the adult Jane Doe occupant of the residence, which makes the opposition confusing, as defendant is evidently taking the position that plaintiff can prove personal service on this defendant by this proof of service. However, the proof of service is for substituted service, not personal service.

There is no declaration of the process server concerning the circumstances of the service, when that evidence, or some admissible evidence, should have been submitted with the opposition to meet plaintiff’s burden on this motion. The evidence submitted consists only of a declaration of counsel, with no personal knowledge of the circumstances of service, who states that counsel searched the internet for a photograph of moving defendant, has discovered a photograph, attached to the opposition, and that counsel, “sent the pictures to the process server to confirm that this was the woman served.” [Shojapour Decl., paras. 1-3, attachment]. There is no indication that the process server did in fact confirm that the woman in the photograph was the woman served, and no declaration of the process server to this effect.

Ordinarily, witness testimony is not offered or permitted to be offered at the hearing, and, in this case, raises issues of due process with respect to the moving defendant being able to meaningfully respond to what the process server may say about the service. This issue seems particularly critical because there was no proof of service filed with the court, so that moving party did not have notice of the type of service being claimed to begin with.

A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing.”

Here, no good cause has been shown and the court has not entered an order permitting oral testimony at the hearing. The required written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing has not yet been filed or served.

This situation leaves plaintiff without admissible evidence to establish that the jurisdictional criteria have been met with respect to the moving defendant. The motion accordingly is granted and the purported service on moving defendant on April 27, 2024 according to plaintiff’s process server, and on April 28, 2024 by apparent posting at defendant’s residence is quashed. The motion is granted without prejudice to plaintiff seeking to make appropriate service on the moving defendant, who has indicated in her declaration that she is not intentionally trying to avoid service, or to apply for permission to make service by posting. [See Waldman Decl., para. 5].

Defendant Inbal Waldman Motion to Quash Service is GRANTED. There is no dispute that any service by posting, if it occurred, was not proper in this matter. To the extent plaintiff relies on substituted service, the substituted service on the moving defendant does not appear to not have been appropriately made, as the Court is not satisfied that plaintiff has shown by admissible evidence that service was made as represented given defendant’s declaration indicating she has not been served, and the failure of plaintiff to submit admissible evidence contradicting that testimony.

Although plaintiff has indicated in its opposition that it intends to have the service processor appear and give testimony at the hearing, there has been no compliance with California Rule of Court 3.1306. Pursuant to subdivision (a) of that rule, evidence at law and motion, “must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” No request has been made to the court for such an order, and no good cause appears from the opposition papers. Pursuant to subdivision (b), a party seeking permission to introduce oral evidence “must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing.” No such statement has been filed and there is no evidence any such statement was served in accordance with this rule.

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