Judge William A. Crowfoot, Case 19STCV09832 2023-04-24 Tentative Ruling

Judge: William A. Crowfoot, Case: 19STCV09832, Date: 2023-04-24 Tentative Ruling

On March 20, 2023, plaintiff Avatar REIT I LLC (“Plaintiff”) filed this unlawful detainer action against defendants Qian Liu, Yang Liu, and all unknown occupants, tenants, and subtenants. Plaintiff alleges it is the legal owner of the real property located at 841 San Simeon Road in Arcadia, California (the “Subject Property”) and obtained ownership of it at a non-judicial foreclosure sale that occurred on or about January 25, 2023. (Compl., ¶¶ 1, 9.) Qian Liu is allegedly the prior owner of the Subject Property. (Compl., ¶ 8.)
On March 29, 2023, defendants Qian Liu, Yang Liu, and “all unknown occupants, tenants, and subtenants” filed this motion to quash service of summons. Also on March 29, 2023, Plaintiff amended the Complaint to add Bailing Liu as Doe 1.

This motion was originally scheduled to be heard on May 18, 2023 and on Plaintiff filed an ex parte application on April 3, 2023 to advance the hearing to the soonest available date. Plaintiff filed an opposition brief on April 3, 2023 and after the ex parte hearing on April 4, 2023, Plaintiff filed a “supplemental opposition” on April 6, 2023, in response to the arguments made at the ex parte hearing.

The Court notes that on April 3, 2023, Bailing Liu filed a motion to quash service of summons which is scheduled to be heard on June 5, 2023. Plaintiff’s ex parte application did not include a request to advance Bailing Liu’s motion and the Court’s minute order granting Plaintiff’s request for ex parte relief did not include Bailing Liu’s motion. The Court also notes that, as an initial matter of standing, neither Qian Liu nor Yang Liu may make this motion on behalf of “All Unknown Occupants, Tenants, and Subtenants.” Therefore, the motion is DENIED insofar as it seeks to quash service on these unnamed parties who have not yet appeared.

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected 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 . . . in the presence of . . . a person apparently in charge . . . and by thereafter mailing a copy of the summons and complaint by first-class mail . . . to the person to be served at the place where a copy of the summons and complaint were left.” (Code of Civ. Proc., § 415.20, subd. (b).) Reasonable diligence is typically satisfied where there are “two or three attempts to personally serve a defendant at a proper place” (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392), or there are a “number of honest attempts to learn defendant’s whereabouts or his address by inquiry” and use of public records (Board of Trustees of the Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 337).

Typically, when a defendant moves to quash service of summons, 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.) However, filing a proof of service by a registered process server creates a rebuttable presumption that service was proper. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 [“The return of a process server registered pursuant to . . . 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”].) The presumption only arises if the proof of service complies with the statutory requirements regarding such proofs. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Defendants argue that service of process was not effectuated on them because: (1) Plaintiff failed to make a good faith effort to personally serve them before attempting substituted service, and (2) Qian Liu does not reside at the Subject Property.

Qian Liu declares that she does not reside at the Subject Property and instead lives in China. (Motion, Qian Liu Decl., ¶ 9.) She states that defendants Yang Liu and Bailing Liu are the current tenants of the Subject Property and that Plaintiff is aware of the lease agreement because it was provided with a copy before this unlawful detainer action commenced. (Id., ¶ 7-8.) She argues that any attempts to personally serve her at the Subject Property were not performed with reasonable due diligence because Plaintiff knew she did not live there. (Motion, 6:4-10.) Qian Liu’s testimony that she does not reside at the Subject Property, lives in China, and that Plaintiff was aware of the lease agreement and her tenants is sufficient to rebut the presumption of proper service.

As for Yang Liu, she admits to living at the Subject Property but declares that she was never personally served with the summons. (Motion, Yang Liu Decl., ¶ 6. She also claims that her husband, Bailing Liu, found three copies of the summons and complaint on the doorstep of the Subject Property. (Motion, Yang Liu Decl., ¶¶ 5-6.) These two statements are insufficient to rebut the presumption that the summons and complaint were properly served. The proof of service includes a declaration of reasonable diligence in which the registered process server, Daniel Espinoza, noted that there was no answer at the Subject Property on March 21, 2023, and March 22, 2023, and that on March 23, 2023, a “Jane Doe” co-occupant, described as an Asian female with red hair, a height of 5’4, and weighing approximately 100 pounds, refused to accept the papers. (Opp., Gore Decl., Ex. 1.) If Yang Liu was actually Jane Doe and refused to accept the papers, it would make sense for her husband, Bailing Liu, to find them on the doorstep that evening. Unlike Qian Yu, Yang Liu does not testify that she was not home at 4PM on March 23, 2023. Yang Liu also does not provide evidence that her description does not match that of Jane Doe.

In its initial opposition brief, Plaintiff argues that it made reasonable efforts to serve the summons and complaint on Defendants on March 21, March 22, and March 2023. The proof of service includes a declaration of reasonable diligence in which the registered process server, Daniel Espinoza, noted that there was no answer at the Subject Property on March 21, 2023, and March 22, 2023, before leaving the papers with a “Jane Doe” co-occupant, described as an Asian female with red hair, a height of 5’4, and weighing approximately 100 pounds.

In its supplemental opposition brief filed on April 6, 2023, Plaintiff argues that Qian Liu does not need to live at the Subject Property in order to be served there because she still claims a total right of ownership, possession, and occupancy. But Plaintiff cites no authority for the assertion that a defendant can be served by substituted service at a property if they only maintain a claim of ownership over it. The statute specifically states that the summons may be left at a “dwelling house, usual place of abode, usual place of business, or usual mailing address.” (Code Civ. Proc., § 415.20, subd. (b).) The cases that Plaintiff refer to are inapposite because they involve a defendant who was served by substituted service at their residence. Here, Qian Liu has submitted sufficient evidence to rebut the presumption of proper service whereas Plaintiff provides no evidence that Qian Liu resides at the Subject Property.

Plaintiff alternatively argues that the Subject Property is Qian Liu’s “place of business” because it is her rental property. However, Plaintiff provides no legal authority supporting its contention that a rental property owned by a defendant is considered their “place of business” for purposes of substitute service. (Supp. Opp., 4:16-21.)

Next, Plaintiff’s request for the Court to demand Qian Liu to acknowledge service at the hearing because they are already in possession of the summons and complaint is not grounded in legal authority. Defective service is not cured by a party’s actual notice of the action. (Abers v. Rohrs (2013) 217 CA4th 1199, 1206.)

Last, Plaintiff’s request for leave to serve the summons and complaint by posting and mailing pursuant to CCP 415.45 is premature. “A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication.” (Code Civ. Proc., § 415.45, subd. (a.)) Plaintiff admits that there is one more address which Qian Liu may be served at: 159 East Live Oak Avenue, #209 in Arcadia, California 91006. Also, the Court separately notes that China is a party to the Hague Service Convention. Therefore, Plaintiff has not shown that Qian Liu cannot with reasonable diligence be served in any manner specified in this article other than publication.

In this supplemental brief, which the Court treats as a reply brief, Defendants submit a declaration from Jenny Kung, the legal assistant of her counsel of record, in which Ms. Kung declares that she sent the lease agreement between Qian Liu and Bailing Liu to Plaintiff’s counsel on March 15, 2023. This supports a finding that Plaintiff’s attempts to serve Qian Liu personally at the Property were not conducted with reasonable diligence and that, in any event, Qian Liu may not be served by substituted service at the Subject Property because it is not her “dwelling house, usual place of above, [or] place of business.” (CCP § 415.20, subd. (b).)

The Court notes that Defendants do not address whether Yang Liu was properly served. Even if Defendants have not ceded that argument, as stated above, Yang Liu has not rebutted the presumption of proper service that is accorded to proofs of services filed by registered process servers.

In light of the foregoing, Defendants’ motion to quash service of summons upon Qian Liu is GRANTED. Defendants’ motion to quash service of summons upon Yang Liu is DENIED. Defendants’ motion to quash service of summon upon “All Unknown Occupants, Tenants, and Subtenants” is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

William A. Crowfoot

Judge of the Superior Court