Judge Ronald F. Frank, Case 22TRCV01278 2023-04-10 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV01278, Date: 2023-04-10 Tentative Ruling

Case Number: 22TRCV01278 Hearing Date: April 10, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 10, 2023¿¿

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CASE NUMBER: 22TRCV01278

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CASE NAME: Michelle Banks v. Avetis Hekimyan, et al.

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MOVING PARTY: Defendant, Avetis Hekimyan

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RESPONDING PARTY: Plaintiff, Michelle Banks

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TRIAL DATE: None Set

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MOTION:¿ (1) Motion to Quash

Tentative Rulings: (1) Defendant’s Motion to Quash is Denied. Defendant ordered to file and serve responsive pleading within 5 days

I. BACKGROUND¿¿

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A. Factual¿¿

On November 21, 2022, Plaintiff filed an unlawful detainer or UD Complaint against Defendants, Avetis Hekimyan, and DOES 1 through 10. However, Defendant denies being served personally, by substitution, or by posting and mailing. Defendant asserts no knowledge of the summons and complaint, nor that anyone was attempting to serve him until Thursday, February 23, 2023, when Defendant arrived home to his primary residence located at 16 Narscissa Drive, Rancho Palos Verdes, California 90275, and noticed the summons and complaint on the ground on the driveway of the Premises. In Opposition, Plaintiff indicates she first obtained a posting order permitting service of the Summons and Complaint by that method, and second she had a registered process server post and serve by certified mail on February 14, 2023, as per the process server’s proof of service.

B. Procedural¿¿

On March 8, 2023, Defendant filed this Motion to Quash. On March 21, 2023, Plaintiff filed an opposition. To date, no reply brief has been filed. On March 28, 2023, the Court granted an ex parte application to advance the hearing on the motion to quash, which had been originally set for hearing on May 3, 2023, nearly two months later than the date the motion to quash had been filed. Code of Civil Procedure § 1167.4 required the hearing to be set within a week of the filing of the notice of motion, but the Clerk’s office apparently did not notice that the hearing date had been set well beyond the mandated statutory period.

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¿II. ANALYSIS¿

A. Legal Standard ¿

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See¿American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See¿id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar¿(2011) 194 Cal.App.4th 1419, 1428; cf.¿People v. Chavez¿(1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See¿Yadegar, supra, 194 Cal.App.4th at 1428.)

There are unique rules for service of process and for motions to quash in the Landlord-Tenant Act. Code of Civil Procedure § 415.45 authorizes an alternate method of serving the Summons and Complaint as detailed below after the landlord obtains a “posting order” permitting service to be accomplished by posting and certified mailing after the court issues an ex parte order on proof of due diligence in efforts to serve in person or by substituted service methods. A motion to quash in a UD case follows the procedure in general civil actions except as tot eh timing of the hearing on the motion. Per Code of Civil Procedure § 1167.4, the hearing on a UD motion to quash is required to be set within a week of the filing of the notice of motion.

B. Discussion

Here, Defendant argues that the taping and/or leaving of the summons and complaint on the driveway of the Premises was not valid as Code of Civil Procedure § 415.45 states:

(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.

(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.

However, Defendant contends that Plaintiff did not mail the summons and complaint to the Defendant, therefore, the posting and/or taping of the summons and complaint on the driveway of the Premises did not constitute valid service.

In opposition, Plaintiff argues that service was proper and that Plaintiff had obtained an Order to Post the summons and Complaint as permitted by Code of Civil Procedure 415.45. The Court’s posting order was signed and filed on February 8, 2023. Plaintiff’s opposition papers attach as exhibits that the registered process server’s proof of service (which was electronically filed with this Court on March 2, 2023), and proof of the certified mailing of the Summons and Complaint. Plaintiff’s exhibits also include the tracking number for the certified mailing as 7019 1120 000 3920 4025, and a declaration of counsel attesting to the post office tracking information showing that the certified mailing package remains at the post office despite a notice being left and a subsequent reminder that a certified document was waiting for Defendant at the post office. Plaintiff argues that Defendant is evading service of the 2^nd step of the two-step posting-and-mailing process by neglecting to go to the post office to pick it up. The registered process server’s declaration raises a presumption that service was properly accomplished by posting and mailing after the February 8, 2023 Order permitting service by that method.

The legislative history of California’s service of process statutes specified a rule of liberal construction “to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, and in the last analysis the question of service should be resolved by considering each situation from a practical standpoint. . . .’ (Report of the Judicial Council’s Special Committee on Jurisdiction pp. 14-15, quoted in Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778.) This rule of liberal construction extends to substituted service as well as to personal service. (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392.) The evidence here is that Defendant does have actual notice of the UD Complaint and that Due Process has been satisfied such that traditional notions of fair play and substantial justice are satisfied.

As a general rule, litigants who deliberately evade lawful service of process have a diminished expectation that the courts will facilitate their evasion. Appellate courts regularly uphold default judgments despite objections by the defendants that service of process was defective. For example, in Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013, the First District denied a motion to relieve the defendant from a default judgment entered after a corporation attempted to avoid service by refusing to unlock its door to answer the process server, so the process server dropped the service papers outside the door and mailed a duplicate set to the defendant’s place of business. In Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, the Second District affirmed a default judgment entered against a defendant over objections that the company had not been properly served in another evasive set of circumstances. There, the company employees told the process server that Defendant’s corporate officer was “out” and refused to allow the server to see any other officer at company offices during normal business hours. The process serve threw the service papers on a coffee table, stated that “you’re served,” whereupon the employees threw the service papers in the trash can. In Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, the Third District found that a defendant was properly served even though the service papers were not handed to the defendant, because he evaded the process server, entered and locked his car, rolled up the window and refused to accepted the documents. The process server placed the service papers under the windshield wiper in plain view of the defendant. In Bein, supra, the Fourth District upheld as valid substitute service on a defendant at a gated community after three unsuccessful attempts to serve defendants in person at their residence, and when the gate guard refused to open or unlock the gate the process server handed the service papers to the gate guard and then mailed the papers to defendant’s residence. In another Fourth District case, Ellard v. Conway (2001) 94 Cal.App.4th 540, 547, the appellate court affirmed the denial of a motion to vacate a default judgment after finding that individual service on the defendants at their private/commercial post office box was proper where the process server left a copy of the service documents with the postal annex manager and mailed a second set of the papers to that P.O. box, defendants’ usual mailing address.

Here, the evidence establishes that the process server made four unsuccessful attempts to make personal delivery at defendant’s residence in December of 2022 including morning, afternoon, and night time, applied for and obtained a court order permitting service by posting and mailing, and thereafter served by posting and certified mailing on February 14, 2023 at the same residence address. Defendant’s declaration is in conflict with the process server’s, defendant asserting he was home in December (although not specifically stating he was home on the dates and times attested to in the declaration of diligence), asserting that he was not served by posting and mailing (although he does not specifically deny that the Summons and Complaint were posted at his front door on or around February 14, 2023), but that he actually received the service papers when he found them on the ground on the driveway of his home over a week later. While asserting that he did not receive a copy of the service papers in the mail, he does not discuss the certified mail notice, follow-up reminder, nor deny that he has not gone to the psot office to see what awaits him there. There is no reply declaration where Defendants clarifies any of these details despite their specification in the Opposition papers. While it would have been stronger evidence for Plaintiff to have provided more details than just the proof of service as to what transpired on February 14, 2023 (such as a separate process server declaration stating the exact location of the posting, attaching perhaps a photo of the posted papers as many process servers do take photos to enable rebuttal of tenant claims that nothing was posted, etc.), the Court finds Plaintiff has adequately met its burden or proving substantial compliance with the service requirements. Given the liberal construction of the service of process statutes, the Court DENIES the motion to quash.

Defendant shall have 5 days in which to file a responsive pleading. Notice to be given by Plaintiff’s counsel. The Court specifically authorized service of all notices and pleadings in this case to be accomplished by email to counsel of record. If Defendant appears now that the special appearance has been accomplished, per Code of Civil Procedure § 1170.5, trial will be set by the Clerk’s office within 20 days of the date Plaintiff formally requests a trial.