Judge: Teresa A. Beaudet, Case: 22STCV20388, Date: 2023-03-08 Tentative Ruling

Case Number: 22STCV20388    Hearing Date: March 8, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Kisha Harris (“Plaintiff”) filed this action on June 22, 2022 against Defendant Lian Boyd (“Defendant”). The Complaint asserts causes of action for (1) unlawful retention of security deposit, (2) breach of residential lease agreement, (3) negligence, (4) conversion, (5) Business and Professions Code section 17200, (6) breach of warranty of habitability, and (7) breach of statutory warranty of habitability.

Plaintiff now moves for an order “directed towards the California Superior Court, County of Los Angeles, Civil Clerk’s Office [Stanley Mosk Division] to enter Defendant’s default based on proper service of process on Defendant and Defendant’s failure to timely respond.” The motion is unopposed. 

Discussion

On September 12, 2022, Plaintiff filed a proof of service of summons indicating that Plaintiff served the summons and Complaint on Defendant by U.S. Mail on July 5, 2022 at the address “Lian Boyd PO Box 7022 Torrance CA 90504.”

Plaintiff filed a request for entry of default against Defendant on September 12, 2022, which was rejected. The Clerk filed a “Notice of Rejection Default/Clerk’s Judgment” on September 14, 2022, which indicates that the September 12, 2022 request for entry of default was rejected because “Lian Boyd *Other - On Proof of Service Section 4 Service by P.O. Box not acceptable. Manner of Service in error. Service for Statement of Damages can’t be served in P.O. Box.”

Plaintiff argues that the Court should direct the Clerk’s office to “enter Defendant’s default based on proper service of process on Defendant and Defendant’s failure to timely respond.” (Mot. at p. 2:4-8.) Plaintiff cites to Civil Code section 1962, subdivision (a)(1), which provides that “[a]ny owner of a dwelling structure specified in Section 1961 or a party signing a rental agreement or lease on behalf of the owner shall do all of the following: (1) Disclose therein the name, telephone number, and usual street address at which personal service may be effected of each person who is: (A) Authorized to manage the premises. (B) An owner of the premises or a person who is authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for all notices and demands.”

Plaintiff asserts that Plaintiff and Defendant’s lease agreement provides, inter alia, “NOTICES: … [A]ll notices to OWNER/AUTHORIZED PERSONAL shall be served by first class mailing to: “Pacific Villas P.O. Box 7022 Torrance CA 90504” (Verdun Decl., ¶ 11.) Plaintiff contends that service of the summons and Complaint can be made at this address by mail pursuant to Civil Code section 1962. But Civil Code section 1962 concerns “information required in rental agreement.” It does not provide that a plaintiff may properly serve a summons and Complaint solely by mail to the address disclosed by the owner pursuant to Civil Code section 1962, subdivision (a)(1).

Plaintiff also asserts that “Civil Code §§ 1962 expressly includes service by mail” (Mot. at p. 6:1), noting that Civil Code section 1962, subdivision (f) provides that “[i]f the address provided by the owner does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed receivable by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner.” But again, this provision does not provide that service of a summons and Complaint may be effected solely by mail, as was done here.

Plaintiff also cites to Civil Code section 1962.7, which provides that “[i]n the event an owner, successor owner, manager, or agent specified in Section 1961 fails to comply with the requirements of this chapter, service of process by a tenant with respect to a dispute arising out of the tenancy may be made by registered or certified mail sent to the address at which rent is paid, in which case the provisions of Section 1013 of the Code of Civil Procedure shall apply.”

Here, Defendant failed to comply with the requirements of the chapter which include providing in the lease ”the usual street address at which personal service may be effected of each person who is: (A) Authorized to manage the premises. (B) An owner of the premises or a person who is authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for all notices and demands.” (Emphasis added.) (Civ. Code, § 1962 (a) (1).) Paragraph 31 of the lease agreement identifies only the P.O. Box for Pacific Villas as both the address for the owner and for a person authorized to act for the owner, “for the purpose of service of process and for the purpose of receiving and receipting all notices and demands.” (Verdun Decl., ¶ 11, Ex. 1.) It does not include a street address; therefore, it does not comply with Civil Code section 1962(a)(1) and Plaintiff may serve the summons and complaint pursuant to Civil Code section 1962.7. Paragraph 2 of the lease agreement provides that rent is to be “delivered to Chase Bank account #4902957509;” no street address is identified but the lease states that the rent payment may be made “M-F during the following hours: 10-4 p.m.” Under these unique circumstances, the Court finds that, pursuant to Civil Code section 1962.7, Plaintiff may be entitled to serve the summons and complaint by registered or certified mail sent to both the P.O. Box and the Chase Bank where the Chase Bank account is located with the account number identified in a cover letter to the Bank. Because Plaintiff served the summons and complaint only by first class mail to the P.O. Box, Plaintiff has not yet complied with Civil Code section 1962.7.

The Court notes that the Verdun Declaration indicates that personal service was attempted on Defendant but “Defendant evaded service of process.” (Verdun Decl., ¶ 13.) Additionally, paragraph 14 of the same declaration indicates that the process server “attempted efforts to serve Defendant.” If Plaintiff has located a street address for Defendant and Plaintiff can demonstrate the requisite efforts to serve the Plaintiff, substitute service may be available to serve the summons and complaint.

Conclusion

Based on the foregoing, Plaintiff’s motion is denied without prejudice.

Plaintiff is ordered to provide notice of this Order.

DATED:  March 8, 2023       

                        ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court