Judge: Robert S. Draper, Case: 23STCV04943, Date: 2023-04-21 Tentative Ruling
Case Number: 23STCV04943 Hearing Date: April 21, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
YUNG KUK YANG,
Plaintiff,
vs.
WILL CONLEY, et al.;
Defendants.
Case No.: 23STCV04943
Hearing Date: April 21, 2023
[TENTATIVE] RULING RE:
DEFENDANT WILL CONLEY’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT.
Defendant Will Conley’s Motion to Quash Service of the Summons and Complaint is DENIED.
Defendant is to file a responsive pleading within five days of the service of the written notice of this order pursuant to Code of Civil Procedure section 1167.4(b).
Moving party to provide notice today and to file proof of service of such notice within five court days after the date of this order.
FACTUAL BACKGROUND
This is an Unlawful Detainer action. The Complaint alleges as follows.
Plaintiff Yung Kuk Yang (“Plaintiff”) agreed to lease residential property to defendant Will Conley (“Defendant”). Defendant has fallen behind on his rent payment. Plaintiff served Defendant with the 3-Day Notice to Pay Rent or Quit (the “Notice to Pay”) on March 1, 2023. At that time, Defendant owed Plaintiff $15,380.00 in overdue rent.
PROCEDURAL HISTORY
On March 3, 2023, Plaintiff filed the Complaint for Unlawful Detainer.
On March 21, 2023, Plaintiff filed the Proof of Service stating that Defendant was personally served by a registered process server on March 13, 2023.
On March 28, 2023, Defendant filed the instant Motion to Quash Service of Summons.
On April 10, 2023, Plaintiff filed an Opposition.
As of April 19, 2023, Defendant has not filed a Reply.
DISCUSSION
I. MOTION TO QUASH SERVICE OF SUMMONS
Defendant moves to quash service of the Summons and Complaint pursuant to Code of Civil Procedure section 418.10.
“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (C.C.P. §418.10(a)(1).) C.C.P. §418.10(a)(1) “is a limited procedural tool to contest personal jurisdiction over the defendant where the statutory requirements for service of process are not fulfilled.” (Stancil v. Superior Court (2021) 11 Cal.5th 381, 390.)
Here, Defendant contends that Plaintiff has failed to file any proof of service. Defendant states that should Plaintiff show proper service, Defendant will “withdraw this motion and file a demurrer or answer under Code of Civil Procedure §1170.” (Motion at p. 2.)
The Court’s docket shows that Plaintiff filed a Proof of Service on March 21, 2023, seven days before Defendant filed the instant motion. That Proof of Service was attested to by a registered process server, and states that Defendant was personally served at his place of residence on March 13, 2023, at 3:30 pm.
Where service is carried out by a registered process server, Evidence Code § 647 applies to eliminate the necessity of calling the process server as a witness as trial. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427.) The proof of service in this circumstance establishes a presumption, affecting the burden of producing evidence of the facts stated in the return. (Id. at 1428.) “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence. . .” (Id.) What is more, a tenant’s statement that he or she has not been served with the three-day notice is insufficient to overcome the presumption affecting the burden of producing evidence to rebut the presumption afforded by Evidence Code § 647. (Id.)
Here, Plaintiff has filed a Proof of Service completed by a registered process server stating that Defendant was properly served with the Summons and Complaint. Accordingly, a rebuttable presumption exists that Defendant was properly served.
As Defendant provides no evidence demonstrating that he was not properly served, he is unable to overcome this presumption.
Accordingly, Defendant Will Conley’s Motion to Quash Service of Summons is DENIED.
CONCLUSION
Defendant Will Conley’s Motion to Quash Service of Summons and Complaint is DENIED.
Defendant is to file a responsive pleading within five days of the service of the written notice of this order pursuant to Code of Civil Procedure section 1167.4(b).
DATED: April 21, 2023
____________________________
Hon. Jill T. Feeney
Judge of the Superior Court
