Case Number: BC508747    Hearing Date: September 04, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

JULIE ROSS, individually and as Guardian ad Litem for DANIELLE ROSS,

Plaintiff(s),
v.

ANTONIA PENA-HERNANDEZ, et al.,

Defendant(s).

Case No.: BC508747

Hearing Date: September 4, 2014

[TENTATIVE] RULING RE:
DEFENDANT ANTONIA PENA-HERNANDEZ’S MOTION TO QUASH SERVICE OF SUMMONS

Defendant Antonia Pena-Hernandez’s Motion to Quash Service of Summons is DENIED.

Factual Background

Defendant Antonia Pena-Hernandez seeks to quash service on the grounds that the summons and complaint were purportedly left at her residence with a person named Miguel Hernandez, but she does not know anyone by that name and no one by that name lives at her address. (Motion, Pena-Hernandez Decl. (“Pena-Hernandez Decl.”) ¶¶3-4.) Defendant Pena-Hernandez states that she does live at the address of purported service, 7252 Claire Avenue in Reseda, California. (Id. ¶3.) Nowhere in her declaration does she state that she did not receive a copy of the summons and complaint.

In response, Plaintiffs present evidence that the summons and complaint in this action were served at 7252 Claire Avenue, Reseda, California, on April 28, 2014 at 6:45 a.m. (Opp., Shultz Decl. (“Shultz Decl.”) ¶¶5-6; Cecil Decl. (“Cecil Decl.”) ¶2 and Exh. 1.) According to the Shultz declaration, he is a registered process server, and at 6:45 a.m. on April 28, 2014, he served the summons and complaint on an individual who identified himself as Miguel Hernandez, and that the individual was a Hispanic male of approximately 45 years, 5’7”, 180 pounds, and black hair. (Shultz Decl. ¶6.) In addition, Shultz states that the individual stated that “Ms. Pena-Hernandez was not present, but that he was authorized to receive the papers and would make certain to provide them to her.” (Id. ¶5.)
Notably, in Defendant Pena-Hernandez’s declaration, she does not state that a 45 year old Hispanic male, as described in the proof of service, does not live with her – only that an individual by the name of Miguel Hernandez does not live with her.

Bob Shultz also states that he attempted to serve the summons and complaint on three days on the same location without success, each time having no answer to the door. (Shultz Decl. ¶¶3,4.) On the second and third attempts at service, Mr. Shultz could hear talking or noises from inside the residence, but no one answered the door. (Id. ¶4.) Mr. Shultz then served the papers on the individual who identified himself as Miguel Hernandez on April 28.

Finally, Mr. Shultz states that on April 28, 2014, a copy of the papers were mailed to defendant Pena-Hernandez. (Id. ¶7.)

Legal Standard

CCP Section 415.20(b) provides that, in lieu of presenting a copy of the summons and of the complaint to a person in that person’s presence, the process server may leave the copies for the person 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. The person to be served must be a natural person as described in CCP Sections 416.60 to 416.90. The process server must leave the copies in the presence of a competent member of the household at least 18 years old, and thereafter must mail a copy of the summons and complaint by first-class prepaid mail to the person to be served at the place where the copy of the summons and complaint were left. (CCP § 415.20(b).) In addition, section 415.20(b) provides that service should be made in this manner where service of the summons and complaint “cannot with reasonable diligence be personally delivered to the person to be served ….” (Id.)

As the Court held in Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160:

It was incumbent upon plaintiff, after the filing of defendant’s motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant. It is well settled that “[i]n the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. [Fn. omitted.] ( [Code Civ. Proc.,] § 410.50.) When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.

However, the Courts have held that the service of process provisions are to be liberally construed, and upheld if actual notice is received. As the Court held in Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392:

We first note that pre-1969 service of process statutes required strict and exact compliance. However, the provisions are now to be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant, “ ‘ ”and in the last analysis the question of service should be resolved by considering each situation from a practical standpoint. …“ ‘ ” ( Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778 [108 Cal.Rptr. 828, 511 P.2d 1180].) The Supreme Court’s admonition to construe the process statutes liberally extends to substituted service as well as to personal service. ( Espindola v. Nunez, supra, 199 Cal.App.3d 1389, 1391.) “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.’ [Citations.]” ( Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416 [232 Cal.Rptr. 653].)

The fact that the summons and complaint were served on a person whose actual name is not Miguel Hernandez does not mean he did not have the authority to accept service and was not likely to deliver the papers to Defendant Pena-Hernandez. (See Bein, supra, 6 Cal.App.4th at 1393-94.) California courts have held that when a person refuses to give his or her true legal name to a process server, this does not defeat service because the purpose of the proof of service is achieved because it would not be hard to determine who was living in a particular house on a relevant date to contest service. (See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 184.)(finding service on “John Doe, co-resident” sufficient substituted service.)

The fact that the person to whom the process server handed the summons and complaint is not legally named Miguel Hernandez, therefore, is not a basis to quash service of the summons and complaint on Defendant Pena-Hernandez, especially in this case where Defendant does not assert that she did not receive a copy of the summons and complaint, and thus she was given actual notice.

Plaintiffs are ordered to give notice.

DATED: September 4, 2014

______________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court