Judge Randolph M. Hammock, Case 22STCV34233 2023-03-06 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV34233, Date: 2023-03-06 Tentative Ruling

Plaintiff Joshua Gafni is a tenant of the property at 750 North Kings Rd., Unit 109, in Los Angeles, CA. Defendant Michael Reyes owns the subject property. Plaintiff alleges his unit suffered water damage from flooding on multiple occasions and that Defendant failed to undertake the necessary repairs in a proper or timely manner. The unit also displayed mold and faulty plumbing and electric, among other issues. It was not until Defendant decided to sell the unit—allegedly without providing the mandated statutory notice to Plaintiff—that Defendant made some of the necessary repairs. Plaintiff now brings causes of action for (1) breach of warranty of habitability, (2) private nuisance, (3) breach of covenant and right to quiet enjoyment and possession of the premises, (4) negligence, (5) unlawful collection of rent and collection of excessive rent, (6) violation of Anti-Harassment of Tenant Ordinance, (7) intentional infliction of emotional distress, (8) negligent infliction of emotional distress, (9) violation of Civil Code section 1940.2, and (10) violation of Business and Professions Code section 17200, et seq.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her . . . .” (Code Civ. Proc., § 418.10, subd. (a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Where a defendant consents to jurisdiction over him or her by making a general appearance in the action, “defective service is not fatal to personal jurisdiction.” (In re Vanessa Q. (2010) 187 Cal. App. 4th 128, 135 [a “general appearance by a party is equivalent to personal service of summons on such party”]; Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [“ ‘[a] general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service’ ”].) A general appearance occurs when the defendant takes part in the action and “in some manner recognizes the authority of the court to proceed.” (Id.) “[W]hether a party engaged in an act that amounts to an appearance is ‘fact specific.’” (Air Mach. Com SRL v. Superior Ct. (2010) 186 Cal. App. 4th 414, 420.) “The determination of special appearance versus general appearance is based on the ‘character of the relief sought,’ not by statements of intention of the party. [Citation.]” (Humphrey v. Bewley (2021) 69 Cal. App. 5th 571, 579.)

Courts have found a general appearance where a defendant moved for a trial continuance (In re Vanessa Q., supra, 187 Cal. App. 4th at 135), appeared at a case management conference (Mansour v. Superior Ct. (1995) 38 Cal. App. 4th 1750, 1757), or propounded discovery. (Factor Health Mgmt. v. Superior Ct. (2005) 132 Cal. App. 4th 246, 250.) [FN 1] On the other hand, designating a local agent for service of summons where mandated by statute (Gray Line Tours v. Reynolds Electrical & Engineering Co., Inc. (1987) 193 Cal.3d 190, 193-194), or appearing as parties' representative for purposes of confirming settlement (Canaan Taiwanese Christian Church v. All World Mission Ministries (2012) 211 Cal.4th 1115, 1127) did not constitute a general appearance, among other examples.

In Opposition, Plaintiff argues Defendant has made two separate general appearances: (1) once by filing an ex parte for a TRO and Preliminary injunction in the related case, Vettoretto v. Gafni (LASC Case No. 22SCV34099); and (2) again by opposing Plaintiff’s TRO and preliminary injunction in the instant case, 22STCV34223. Plaintiff improperly conflates the two separate actions. Defendant cites no authority suggesting that making a general appearance in the related case has any implication in this case. Thus, this court addresses only whether Defendant made a general appearance in the instant case.

Here, as argued by Defendant, Defendant’s opposition to the ex parte falls within the purview of CCP section 418.11 and was not a general appearance. This section provides: “An appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance and does not constitute a waiver of the right to make a motion under Section 418.10.” (CCP 418.11.)

The instant case is distinguishable from Factor Health Mgmt. v. Superior Ct. (2005) 132 Cal. App. 4th 246, 250, in which the Court found section 418.11 was inapplicable and that the defendants had made a general appearance. There, the defendants filed an ex parte application for an order seeking discovery in order to respond to the Plaintiff’s own ex parte application for a temporary restraining order and order to show cause for a preliminary injunction.

The key fact in that case was that the defendants “did more than appear at the hearing on” the ex parte for a provisional remedy.” (Id. at 250.) Rather, they also “sought discovery in connection with the order to show cause for a preliminary injunction.” (Id.) Because the defendants’ “conduct of discovery involved the merits of the case,” “[i]t therefore constituted a general appearance in the action.” (Id. at 251.)

Here, unlike in Factor Health, Defendant did not file the ex parte motion at issue, nor did he seek discovery related to that motion. Instead, Defendant merely opposed Plaintiff’s ex parte. In that sense it was Plaintiff and only Plaintiff who sought affirmative relief. (See Humphrey v. Bewley (2021) 69 Cal. App. 5th 571, 579 [“The determination of special appearance versus general appearance is based on the ‘character of the relief sought.’”].) Thus, section 418.11 applies, and Defendants’ opposition to the ex parte in this case was not a general appearance.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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 attached Proof of service shows the summons and First Amended Complaint were served by substitute service on November 18, 2022, at 15315 Magnolia Blvd, Suite 212, Los Angeles, CA 91403. (Tabback Decl., Exh. A.) That address is the business of Ross Morgan & Company, Inc. (Id., Declaration of Diligence.”) The Process server attests to have left the documents with a “Jane Doe” who was a “Receptionist – Person In Charge Of Office” at that Business. (Id.) The Process Server’s Declaration of Diligence states he first attempted service at the Magnolia Boulevard address on November 16, 2022, but the Defendant was “not available.” (Id.) Moreover, a Jane Doe “mentioned defendant does not receive mail, does not work there and would not accept service.” (Id.) The Process server returned to that address the next day, and Jane Doe again informed the server that Defendant Reyes “does not work or receive mail here.” Plaintiff then returned on the third day, November 18, 2022, and left the summons and FAC with Jane Doe. The Process Server then mailed the documents to the same address: 15315 Magnolia Blvd, Suite 212, Los Angeles, CA 91403.

In his declaration, Defendant Reyes attests that “[n]o attempts have been made to personally serve [him] with summons and complaint.” (Reyes Vettoretto Decl. ¶ 3.) He also states: “I do not and never have worked at or been affiliated with Ross Morgan & Company, Inc. I have never worked at or resided at 15315 Magnolia Blvd., Suite 212, Los Angeles, CA, and I have never received mail at that address.” (Id. ¶ 4.)

Plaintiff argues the substitute service was proper because the lease agreement allows for service on the authorized agent or property manager, who Plaintiff contends was the party served in this case. The lease agreement states that “Any person managing the premises…[is] authorized to accept service of process and receive other notices.” (Jalili Decl., Exh. 1, ¶ 23.) “Premises” is defined as Unit 109. (Id. ¶ 2) Plaintiff further argues that Ross Morgan & Company, Inc. is “specifically named as the property managements company for the Unit on the condo association website.” (Opp. 10: 14-15.) Plaintiff references communications between Defendant and Ross Morgan & Company, Inc.’s COO, Warren Davidoff, to evidence management of the premises.

Here, there is nothing to firmly suggest that Ross Morgan & Company is the person or company “managing” the individual unit as contemplated in the lease. While Ross Morgan & Company likely plays some role in routine maintenance or repair at the condominium complex as a whole, this is different than managing the individually defined unit as is defined as the “premises” in the lease. Rather, that person appears to be only Defendant Reyes. For that reason, it is Defendant Reyes who must be validly served by substitute service or otherwise. “Service must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.’” (Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1203.) That is not met here.

This Court’s technical finding of ineffective service here should not be mistaken for condoning Defendant’s actions concerning service of process. . After all, if Defendant is capable of obtaining counsel and filing his own action against the tenant, he can and should reasonably provide a valid point of service, or, arrange for his counsel to accept service on his behalf in this related case.

While this court will not go so far to say that Defendant is intentionally evading service, but at a minimum, Defendant has made it needlessly difficult to do so. Defendant should reconsider this course of action going forward, with the reminder that actions can have consequences for him. [FN 2]

Judge of the Superior Court

FN 1 - This list is not exhaustive.

FN 2 - For example, Plaintiff can simply utilize the provisions of CCP §415.030. If Defendant or his counsel refuses to accept service in that manner, then Defendant will be personally liable under subdivision (d) for all reasonable costs of future service of process, no matter which party prevails in this case. Should this really come down to this? Hopefully reasonable minds will prevail. Just food for thought.