Judge Upinder S. Kalra, Case 22STCV24746 2023-05-08 Tentative Ruling

On March 28, 2023, Plaintiff Leonardo M. Lopez (“Plaintiff”) filed an unlawful detainer against Defendant Jason Reed (“Defendant.”) The complaint states that the 6-month lease was changed, and the tenancy become month to month on December 31, 2022. The rent increased from $6,000 to $8,000 commencing April 1, 2023. Defendant notified Plaintiff that he would not be paying the increase in rent and failed to surrender the premises to Plaintiff.

On April 10, Defendant filed a Motion to Quash Service of Summons. Plaintiff’s Opposition was filed on April 13, 2023. No reply has been filed as of May 3, 2023.

“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.)

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:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the 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.

Defendant argues that the Vinton address where service was attempted is not the usual place of business, mailing address, or residence of Defendant. Additionally, the individual who accepted service was not an agent or service or employee, but rather the Defendant’s sister. Defendant also argues that he has not received the Summons and Complaint in the mail. (Motion 5: 10-20.) Defendant also argues that the hours that service was attempted violates CCP § 1011(b)(1), which states that service shall be made between 8 a.m. and 8 p.m., but here the attempted service was at 8:10 p.m.

Plaintiff argues that service was proper. First, while Alexus Jackson declaration states that Mr. Reed has not resided at the Vinton address for many years, last year Defendant Reed stated under oath that he resides on Vinton (Dec. Diaz, ¶ 7, Ex. 4), and public records indicate that Vinton is his service address. (Dec. Diaz, ¶ 6, Ex. 3.) The process server attempted service at two different addresses: the Up La Brea Studios and the Vinton address. (Dec. Diaz, ¶ 11, Ex. 8.) Plaintiff argues that service was proper at the Vinton address because Defendant stated in his responses to form interrogatories that his residential address was the Vinton address, named himself agent for service of process for Real Soon, and listed Vinton as the service address.

“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.4th 383, 389.) Here, Exhibit 8 as well as the Declaration of Due Diligence, filed on 4/13/2023, indicates that the process server attempted 4 times before eventually serving on the fifth time. The Court finds that Plaintiff has established reasonable diligence, attempting twice at both different residences at various times of day, ranging from 8:55 a.m. to 2:18 p.m., and eventually at 8:00 p.m.

Under § 415.20(b), once diligence is established, the summons and complaint may be left “in the presence of a competent member of the household.” Here, the form interrogatories signed in December 2022 indicate that Defendant stated his residence was the Vinton address. Form Interrogatory No. 2.5 requests the individual to state “(a) your present residence address, (b) your residence address for the past five years; and (c) the dates you lived at each address.” (Dec. Diaz, ¶ 7, Ex. 4.) Defendant responded to No. 2.5 as follows: “(a) 3439 Vinton, Los Angles, California 90034, (b), Same.” (Id.) Thus, Plaintiff was attempted to be served at his home twice. As for the other address, the La Brea Studio address, the evidence indicates that Defendant was the agent of process and indicated that the mailing address was the Vinton address. (Dec. Diaz, ¶¶ 6 and 9, Ex. 3 and 6.) Therefore, the process server attempted personal service and substituted service at both Defendant’s home residence as well as the Vinton residence based on the information that Defendant was the agent of service of process for Real Soon, the address was the Vinton address. Thus, the Court finds that when the process server finally was able to hand the documents to Alexis Doe and accepted the documents, service had been made. Accordingly, the Court finds that Plaintiff has met its burden by a preponderance of the evidence that the requirements for substitute service of process has been met.[1]

“ ‘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.

[1] The Court also notes that in a related case, Defendant filed a similar motion to quash service of summons. However, this Court denied that motion after the evidence indicated that a process server had attempted 16 times to serve the Defendant. The Court notes that there is a pattern emerging with Defendant and accepting service. In that matter, the Court made the following observations which is worthy of repeating: “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.)