Judge: Stephen P. Pfahler, Case: 22CHCV00451, Date: 2022-09-22 Tentative Ruling

Case Number: 22CHCV00451    Hearing Date: September 22, 2022    Dept: F49

Dept. F-49

Date: 9-22-22 a/f 10-11-22 (9-7-22 ex parte order)

Case #22CHCV00451

QUASH

MOVING PARTY: Defendant, Roshanak Nasiri

RESPONDING PARTY: Plaintiff, GH-Balboa 1998 L.P.

RELIEF REQUESTED

Motion to Quash Service of the Summons

SUMMARY OF ACTION

On June 20, 2022, Plaintiff GH-Balboa 1998 L.P.filed a complaint for unlawful detainer based on an alleged breach of a lease agreement. On July 14, 2022, Defendant filed a peremptory challenge to Department 47, thereby leading to reassignment to Department 49 on July 18, 2022.

RULING: Denied.

Defendant Roshak Nasiri dba Granada Hills Market moves to quash service of the summons and complaint on grounds of lack of direct service, and invalid substituted service. Defendant contends substituted service on Luis Escobar was not proper, as Escobar was not authorized to receive service, and denies ever receiving a copy in the mail. Plaintiff in opposition contends service was executed by a licensed process server by leaving the summons and complaint with a person apparently in charge. The proof of service complies, including a declaration of diligence and mailing. Defendant in reply challenges the credibility of the process server due to the lack of a “plausible” basis for service, and denial of authority of Escobar to accept service.

A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.) The court electronic filing system lacks filed copies of the proofs of service, but the court accepts the copies attached to the opposition as the agreed upon operative documents. Three proofs of service are attached, but for purposes of the subject motion the court ONLY addresses the proof of service on Roshanak Nasiri.

The proof of service indicates substituted service on June 23, 2022 at 12:10 p.m. Service was completed on Luis Escobar, identified as a person apparently in charge. The declaration of reasonable diligence shows prior attempts on June 21, 2022 and June 22, 2022. between the times of 9:00 a.m. to 5:30 p.m. The proof of substituted service indicates mailing of the documents on the same date. The proof of service was executed by E. Ratliff, a licensed process server.

“The return of a process server registered [under] Division 8 of the Business and Professions code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.) The parties do not factually dispute the process server in fact left the papers with Escobar.

Other than a denial of Escobar’s authority to receive service, Defendant evades any acknowledgment of the reasons for the presence of Escobar on the premises though Defendant admits to receiving information of the subject action from Escobar. The court infers that Escobar was in fact an employee of the premises, that Defendant refused to accept service, and the process server left the summons and complaint with Escobar given no other person apparently present to greet customers on the business premises. (Code Civ. Proc., 415.20, subd. (b).) Furthermore, service in this context is allowed “upon a person 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.’” (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393; Ellard v. Conway (2001) 94 Cal.App.4th 540, 546 (footnote 3).)

The court finds the time frame for delivery reasonable and within normal business operation hours. The court finds the denial of receipt of any mail insufficient. Denial is not a form of evidence given the presumption of valid service provided under Evidence Code section 647. 

The motion is therefore denied. Defendant is ordered to answer within five (5) days.

Furthermore, given that Defendants filed a 170.6 challenge, Defendants have waived any further jurisdictional challenges should Defendant Mohamad Saklawi contemplate any additional challenges with the goal of delaying adjudication. (Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 125.)

Moving Defendant to provide notice.