Judge: Upinder S. Kalra, Case: 22STCV24746, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV24746    Hearing Date: December 5, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:    December 5, 2022                                          

CASE NAME:           Leonardo M. Lopez v. Jason Reed

CASE NO.:                22STCV24746

DEFENDANT’S MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant Jason Reed

RESPONDING PARTY(S): Plaintiff Leonardo M. Lopez

REQUESTED RELIEF:

1.     An order quashing the service of summons.

TENTATIVE RULING:

1.     Motion to Quash Service of Summons is DENIED.  

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On July 29, 2022, Plaintiff Leonardo M. Lopez (“Plaintiff”) filed an unlawful detainer against Defendant Jason Reed (“Defendant.”) The complaint states that after Defendant was notified of a monthly rent increase from $6,000 to $8,000, Defendant refused to pay the increase rent or quit.

The current Motion to Quash Service of Summons was filed on September 28, 2022. Plaintiff’s Opposition was filed on November 18, 2022. Defendant’s reply was filed on November 28, 2022.

LEGAL STANDARD:

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .”  (Code Civ. Proc., § 418.10(a).)  “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”  (Id. at 1441-1442.)  When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)  “A court lacks jurisdiction over a party if there has not been proper service of process.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

Procedural Issue:

The Court notes that there are currently two motions to quash service of summons filed by Defendant. These are based on two separate instances of service. In Opposition, Plaintiff attempts to argue why both attempts were proper. However, the Court will only analyze the first attempt, as it is the one raised in the noticed motion scheduled for 12/5.[1]

Evidentiary Objections:

Declaration of Jason Reed

1.     Paragraph 1, 11-15: “Jessie Hopkins…was a paid as a courier to collect some software plugins for an engineer named "Heartbreak."” – SUSTAINED.

2.     Paragraph 1, 17-20: “Heartbreak’... in turn left the door to the property open to permit collection of the software plugins by a third party e.g., whomever Jessie Hopkins is working for.” – SUSTAINED.

ANALYSIS:

Defendant Jason Reed moves to quash the service of summons on the grounds that the Court lacks personal jurisdiction over him.

Under CCP § 418.10(a)(1), a defendant may move to quash the service of summons on the grounds that the Court lacks jurisdiction over him or her. Defendant argues that Plaintiff failed to effect proper service of process. Under CCP § 415.20(b), service is proper via substituted service. The statute states:

In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left… Service of a summons in this manner is deemed complete on the 10th day after the mailing.

Code Civ. Proc., § 415.20(a)

Here, the facts indicate that Defendant was not served himself, but rather an individual named “Jessie Hopkins.” (Dec. Reed, Ex. A.) According to Defendant Jessie Hopkins is not an agent or employee of Defendant. (Id. at 4.)

Plaintiff argues that the efforts to serve the Defendant were reasonable, attempting 16 different times. (Opp., Ex. 1 and 2.)[2] Moreover, Plaintiff argues that Jessie Hopkins as apparently in charge of the office because he had possession of the keys of the business and agreed to give Defendant the documents.

“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.) 

“The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) “Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

Here, Plaintiff has met its burden. Under section 415.20, “an individual may be served by substitute service only after a good faith effort at personal service has first been made.... Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘ “reasonable diligence.” ’ ” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4^th 383,  389.) The exhibits attached to the Opposition indicate that service was attempted over 10 times by a registered process server at the 816 S. La Brea address but each time was met with closed and locked door that prevented access. (Opp. Exhibit 2, Dec. of Wilfredo Quijada.) The number of attempts,11; the timing of the visits, 11:00 am to 11:00 pm; and, the amount of time spent at the location to locate the Defendant is compelling and overwhelming evidence of reasonable diligence.[3] The fact that some of the attempts were late at night only further demonstrates persistence and diligence, after all, this was a music recording business and it is reasonable to infer that its clients—musicians— may keep unconventional hours to record music. Accordingly, the Court finds the process server went above and beyond what was required to establish reasonable diligence.

Under §415.20(a), once diligence is established, the summons and complaint may be left with someone “who is apparently in charge thereof” and later mailed. On the last attempt, after waiting for one hour, at 12:07 p.m.[4], the registered process server observed an individual use a key to enter the locked building. The process server then inquired of the person if he was Jason Reed. The person identified himself as Jesse Hopkins, The process server then asked the person if he could give the documents to Mr. Reed. Only after receiving an affirmative response did the process server leave the documents with the person identified as Jesse Hopkins on September 9, 2022. (Ex. 2, Declaration of Due Diligence.) The declaration further indicates that a copy of the documents was mailed to that business address on September 19, 2022. (Id.) Substituted service does not require a showing that the person is actually in charge of the business, only apparently in charge. A person using a key to enter a commercial building that has been observed on numerous occasions locked and secured is strong circumstantial evidence that such a person is apparently in charge of the business. Noticeably absent from the motion to quash or the reply is a declaration from Jesse Hopkins. Moreover, the Court is not bound to accept Defendant’s self-serving declaration that Jesse Hopkins is unconnected to his business. Interestingly, in his declaration, Defendant does not deny receiving the “documents” from Jessie Hopkins or any third party or receiving the documents in the mail.[5] Thus, the declaration of the process server is unchallenged and unrebutted.

The “ ‘ “purpose of ... section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person. ...” [Citation.] Service must be made 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.” [Citation.]’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1203.) The Court finds the declaration of the registered process service to be credible and establishes more likely than not that the person identifying himself as Jessie Hopkins was apparently in charge of the business and would deliver process to Defendant.  Accordingly, the Court finds that Plaintiff has met its burden by a preponderance the evidence that the requirements for substitute service of process has been met.[6]

The Court will add the following observation.  “Litigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access.”(Bein v. Brechtel-Jochim Grp., Inc. (1992) 6 Cal. App. 4th 1387, 1393 (Bein.) Thus, “[a] defendant will not be permitted to defeat service by rendering physical service impossible.” (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013.) There is overwhelming, unrebutted evidence that this is exactly what is happening here. The complaint was filed on July 29, 2022. (See Court file.) On August 5, 2022, Defense counsel was notified of the complaint. (Opp. Counsel Diaz’ 10-18-22 declaration.) The property manager, thereafter, promptly attempted personal service on three occasions in August 2022, but was refused admittance by Defendant to the locked business. (Opp. Carrera Dec.) A registered process server was then retained. (Opp. Counsel Diaz’ 10-18-22 declaration.) After five failed attempts to serve Defendant at the business, the Registered process server called Defendant and attempted to arrange service but Defendant refused to make himself available. (Opp. Exhibit 2, Proof of Service Dec. of Diligence by Quijada.)  Even Defense Counsel was contacted by Plaintiff’s counsel to arrange service but counsel simply ignored Plaintiff’s counsel emails. (See opposition Counsel Diaz’ 10-18-22 declaration.) The process server was not deterred and continued to investigate other locations, returning to the business address an additional six times before finally seeing a person entering the business with keys, who agreed to provide Defendant the summons and complaint. Defendant and defense counsel do not challenge these assertions with admissible evidence. Thus, they remain unrebutted and unchallenged.

“ ‘To be constitutionally sound the form of substituted service must be “reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard ... [in order that] the traditional notions of fair play and substantial justice implicit in due process are satisfied.” ’ ” (Bein, supra, 6 Cal.App.4th at p. 1392.) Therefore, “ ‘[s]tatutes governing substitute service shall be “liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant....” ’ ” (Hearn v. Howard , supra, 177 Cal. App. 4th at pp. 1202–03.) Defendant has been afforded more than adequate Due Process. It is obvious to the Court that Defendant has received actual notice and the court is making such a finding.

The Motion to Quash Service of Summons is DENIED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

The Motion to Quash Service of Summons is DENIED.

Responding party is to give notice.

Defendant is to file a responsive pleading within five days-notice of this order (CCP § 1167.1)

IT IS SO ORDERED.

Dated:             December 5, 2022                   __________________________________                                                                                                                        Upinder S. Kalra

                                                                                    Judge of the Superior Court