Case Number: KC067088    Hearing Date: October 06, 2014    Dept: J

Re: Brenda Breen v. Brandon Emilio, et al. (KC067088)

MOTION TO QUASH SERVICE OF SUMMONS

Moving Parties: Defendants Brandon Emilio and Doug Green

Respondent: No timely opposition filed

Plaintiff, in pro per, commenced this unlawful detainer action on 8/25/14. On 9/17/14, a Clerk’s Notice of Filing Fees Required was filed and served on Plaintiff by mail, notifying Plaintiff that the check for the initial filing fee was returned by the bank and requirng a payment of $500.00 by 10/17/14.

The Case Management Conference is set for 1/5/15.

Defendants Brandon Emilio and Doug Green (collectively “Defendants”) specially appear pursuant to CCP § 418.10 to move for an order quashing service of the summons and complaint on the grounds that the court lacks jurisdiction over Defendants for reasons including that Plaintiff’s complaint fails to state a cause of action for unlawful detainer justifying a five-day summons, and because Plaintiff has not properly served Defendants with process.

Within the five-day pleading deadline, defendants may file a motion to quash service of summons. Broadly, a motion to quash is used to challenge the court’s personal jurisdiction over the moving party. (CCP §§ 1167.4, 418.10; CRC 3.1327.) Any defect that goes to the heart of the court’s authority to exercise personal jurisdiction over defendant pursuant to a five-day unlawful detainer summons can be raised by a motion to quash. (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036.)

Even when the defendant tenants actually received summons and complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was not served in a statutorily-authorized manner. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 391–392.)

Ordinarily, in civil litigation, a demurrer — not a motion to quash service of summons — is the exclusive pre-answer procedure by which to challenge the sufficiency of a complaint. (Greener v. Workers’ Comp. Appeals Bd., supra, 6 Cal.4th at 1036.) Nonetheless, it has been held that a motion to quash — and not a demurrer — is the “only” acceptable procedure to test whether a complaint states a cause of action for unlawful detainer supporting a five-day summons. (Delta Imports, Inc. v. Mun.Ct. (Missimer) (1983) 146 Cal.App.3d 1033, 1036.)

Although the defendant is the moving party, the burden of proof is on the plaintiff to defeat the motion by establishing that jurisdictional grounds exist. (Mihlon v. Super.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710.)

SERVICE OF SUMMONS:

“Any person who is at least 18 years of age, and not a party to the action” may serve a summons. (CCP § 414.10.)

Under certain circumstances, service is authorized by delivering copies of the summons and complaint to someone other than defendant; and thereafter mailing additional copies to defendant. (CCP § 415.20.) In using substitute service for individual, a good faith effort at personal service must first be attempted. I.e., there must be a showing that summons “cannot with reasonable diligence be personally delivered” to the individual defendant. (CCP § 415.20(b).) Two or three attempts to personally serve defendant at a “proper place” ordinarily qualifies as “reasonable diligence.” (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392.)

Here, the service on Defendants is ineffective because Plaintiff improperly, as a party to the action, performed the service herself. Moreover, Plaintiff failed to demonstrate that a good faith effort at personal service was first attempted prior to performing substitute service. Further, Defendant Emilio submits evidence that a copy of the summons and complaint was never mailed to him. (Motion, Emilio Decl. ¶ 5.) Accordingly, the motion to quash based on improper service of summons is granted.

FAILURE TO STATE A CAUSE OF ACTION FOR UNLAWFUL DETAINER:

A notice to pay rent or quit may only demand back rent accrued within one year prior to service of the notice; a notice that demands more is invalid and will not support an unlawful detainer. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697–698 — including unpaid rent due more than one year before notice served resulted in an overstatement of the amount due, rendering the notice defective; see CCP § 1161(2).)

Plaintiff’s Complaint is based on a defective underlying three-day notice to pay rent or quit. Specifically, the three-day notice attached to the complaint sought payment of alleged past-due rent in the sum of $44,550.00, for monthly rent of $1,650.00, for the period from May 1, 2012 through July 1, 2014. (Complaint, Exh. 2, Three Day Notice.) Thus, the motion to quash is also granted on this ground as well.