Judge: Thomas D. Long, Case: 23STCV03726, Date: 2023-04-11 Tentative Ruling

Case Number: 23STCV03726    Hearing Date: April 11, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On February 16, 2023, Plaintiff Prime/Park LaBrea Titleholder LLC filed this unlawful detainer action against Defendant Tia Rowe.

On March 8, 2023, Plaintiff filed a Proof of Service by a registered process server showing personal service on Defendant on February 28, 2023.  Plaintiff also filed a Proof of Service by a registered process server showing substituted service on all known and unknown occupants via Defendant, as well as service by posting.

On March 9, 2023, Defendant filed a motion to quash service of the summons and complaint.

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 and motion to 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)(1).)

A.        The Court Will Not Deny the Motion Based on the Filing and Hearing Dates.

Plaintiff argues that the motion is improperly set and should be denied on that basis.  (Opposition at p. 3.)  When a defendant files a motion to quash service of summons in an unlawful detainer action, “the time for making the motion shall be not less than three days nor more than seven days after the filing of the notice.”  (Code Civ. Proc., § 1167.4, subd. (a).)  Defendant simultaneously filed her Notice of Motion and supporting Memorandum of Points and Authorities on March 9, 2023, noticing a hearing date of April 11, 2023.  “[S]ection 1167.4, which pertains to motions to quash service of summons, specifies only the time restrictions for a defendant to make, file, and serve the motion.”  (Stancil v. Superior Court (2021) 11 Cal.5th 381, 396.)  Plaintiff cites no authority requiring the denial of a motion to quash that is set for a later hearing date.

B.        Plaintiff Has Not Proven the Validity of Service.

“[O]nce a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant.”  (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.)  Service by a registered process server “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  (Evid. Code, § 647.)  This evidentiary presumption also applies in unlawful detainer actions and is “consistent with the purpose of the unlawful detainer procedure to afford a relatively simple and speedy remedy for specific landlord-tenant disputes.”  (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427 (Palm Property).)

Defendant contends that on March 4, 2023, she found a document at her door and discovered that it was an unlawful detainer complaint.  (Motion at p. 3; Rowe Decl.)  She was not personally served with the summons and complaint.  (Motion at p. 4; Rowe Decl.)  Unlike the defendants in Palm Property, Defendant has not just relied on an Answer that denies that she was properly served.  (See Palm Property, supra, 194 Cal.App.4th at p. 1428.)  Instead, Defendant has provided evidence in the form of her declaration.

The Court finds that Defendant has provided evidence to rebut the presumption under Evidence Code section 647.  Plaintiff provides no contrary evidence in opposition, relying only on the Proof of Service from the registered process server.  Accordingly, Plaintiff has not proven the validity of the service.

C.        Plaintiff Did Not Serve Defendant By Substituted Service.

Plaintiff argues that the summons and complaint may be served by substituted service, and Plaintiff substantially complied with service requirements because Defendant has actual notice of this action.  (Opposition at p. 5.)

First, the filed Proof of Service for Defendant indicates personal service only, not substituted service.

Second, the filed Proof of Service for all known and unknown occupants indicates substituted service by leaving the documents with Defendant.  Defendant’s declaration denies that Defendant was ever served in person, so any attempt at substituted service on her as a “known and unknown occupant” is contradicted by Defendant’s evidence.

Third, Plaintiff did not apply to serve anyone by posting, so any attempt at service by posting was not authorized.  (See Code Civ. Proc., § 415.45.)

Plaintiff’s authority regarding substantial compliance with the form of a summons served on an entity defendant is inapplicable in this unlawful detainer action against an individual defendant where the defect is in the manner of service, not the contents of the summons.  (See Opposition at p. 5.)  Moreover, Plaintiff has not shown that it substantially complied with any service requirements.  Plaintiff notes only on Defendant’s actual notice of this action, but proper service of the summons and complaint is still required.

D.        Conclusion

The motion to quash is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

      Dated this 11th day of April 2023