Case Number: 19BBCV00861 Hearing Date: December 27, 2019 Dept: NCB

Superior Court of California
County of Los Angeles

North Central District
Department B

5312-20 corteen pl., limited partnership,

Plaintiff,

v.

ciomara campos,

Defendant.

Case No.: 19BBCV00861

Hearing Date: December 27, 2019

[TENTATIVE] order RE:

motion to quash service of summons and complaint

BACKGROUND

A. Allegations and Background

Plaintiff 5312-20 Corteen Pl., Limited Partnership (“Plaintiff”) is the owner of multi-family apartment building located at 5312 Corteen Place, Valley Village, California 91607. Defendant Ciomara Campos (“Defendant”) is a former employee of Plaintiff who resides in Unit 4 of the apartment. Plaintiff hired Defendant as a resident manager of the building on December 11, 2017. Pursuant to the Resident Manager Employment Agreement, Defendant agreed to become a resident of the apartment and accept pay of 2/3 of the fair market rental value of the apartment per month in exchange for her employment. Upon cessation of employment, the full market rental value of the apartment would be due and owing upon any notice to vacate.

Plaintiff terminated Defendant’s employment on September 26, 2018 and issued her a 15-day notice to vacate. Plaintiff alleges that Defendant refuses to vacate the apartment. Plaintiff filed an unlawful detainer action (Case No. 18DUD03982), which ultimately held for Defendant with possession but the UD court did not rule on the amount of rent due and owing from Defendant.

The complaint, filed September 25, 2019, alleges causes of action for: (1) declaratory relief; and (2) breach of contract.

B. Motion to Quash

On November 22, 2019, Defendant filed a motion to quash service of the summons and complaint.

On December 13, 2019, Plaintiff filed an opposition to the motion.

LEGAL STANDARD

CCP §418.10(a) permits a defendant to serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the Court over the defendant. A motion to quash must be made on or before the last day of his or her time to plead, or within any further time the Court may for good cause allow. (CCP §418.10(a).)

CCP §415.20(b) 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.”

DISCUSSION

A. Proof of Service

The proof of service filed on October 17, 2019 indicates that the summons and complaint were served on Defendant by substituted service at 5312 Corteen Place, Apt. 4. The service occurred on October 16, 2019 at 8:08 p.m. on a John Doe, who refused to disclose his name, and is identified as an uncle or co-occupant at Defendant’s home. The documents were thereafter mailed to Defendant at the same address. Service was performed by a registered California process server. According to the Affidavits of Reasonable Diligence, William Umana and Rebecca S. Ponce De Leon made attempt from October 3 to October 16, 2019 to serve the documents at different times of the day.

B. Merits of Motion

Defendant moves to quash the summons and complaint served on her. She argues that she was not personally served or served by substituted services. She argues that on November 1, 2019, she received a phone call regarding a public record, which she believed to be a telemarketer. (Mot. at p.2.) She states that she then received a letter from a third party stating there was a case filed under her name. (Id.) She states that she followed the instructions on the letter, paid a fee to receive a case number, and then paid for information to pull the case records on November 8, 2019. (Id.) She states that she spoke with “the other responsible party with-in the residence” and that they expressed they did not receive any documents. (Id.) She states that the residence consists of 2 disabled persons and 2 minors. (Id.)

However, Defendant has not provided the Court with any evidence that she was not properly served with a copy of the summons and complaint by substituted service and by mail. She has not provided her declaration nor has she provided the declaration of the “responsible party” as described on page 2 of her moving papers. Defendant also does not deny that she lives in apartment unit 4.

Defendant also argues that she was not personally served and thus service was not proper. However, personal service is one of the methods of serving a defendant in the action, and is not the only method. As stated above, substituted service is proper under CCP §415.20(b) where personal service cannot be made despite reasonably diligent efforts. According to the Affidavits of Reasonable Diligence provided by William Umana and Rebecca S. Ponce De Leon, which are attached to the proof of service, Plaintiff’s registered process servers did make several attempts to effectuate service on Defendant personally.

In opposition, Plaintiff provides the declarations of Nathan Lowery (Plaintiff’s counsel) and William Umana (registered process server). Mr. Lowery states that he hired professional process servers, Commercial Process Servers, Inc., to effectuate service of the summons and complaint on Defendant. (Lowery Decl., ¶2.) Mr. Umana states that he made diligent efforts to personally serve Defendant with his colleague, Rebecca S. Ponce De Leon. (Umana Decl., ¶3.) He states that he successfully sub-served Defendant by giving the documents to a gray-haired man in his 60s who answered the door to unit 4. (Id., ¶4.) Mr. Umana states that though the man would not provide his name, the man told Mr. Umana that Defendant was not available, and Mr. Umana explained the nature of the paper work to him. (Id.) He states that he then mailed the documents on October 17, 2019 to the same address. (Id., ¶5.)

Here, there is a presumption that service by the registered process server is proper. (Evid. Code, §647.) This is further confirmed by the declarations submitted with the opposition brief. In moving to quash service of the summons and complaint, Defendant has not upheld her burden in refuting this presumption because she does not dispute that service occurred at the proper address and she does not provide any evidence showing that she or any other resident did not receive the documents.

CONCLUSION AND ORDER

The motion to quash service of the summons and complaint is denied.

Plaintiff shall provide notice of this order.