18-UDL-01002 NINTH AVENUE GARDEN, LLC, ET AL. VS. ANNE M. VOGEE, ET AL.

NINTH AVENUE GARDEN, LLC ANNE M. VOGEE
MICHAEL A. BITONDO PRO/PER

MOTION FOR SUMMARY JUDGMENT BY NINTH AVENUE GARDEN, LLC AND MARY MICHAELS, AGENT TENTATIVE RULING:

The Motion of Plaintiffs Ninth Avenue Garden, LLC and Mary Michaels, Agent (“Plaintiffs”) for Summary Judgment is DENIED.

A plaintiff has met his or her burden of showing there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (CCP §437c(p)(1).) Once the plaintiff has met that burden, the burden shifts to the defendant to show a triable issue of one or more material facts as to the cause of action or a defense thereto. (Id.)

In this motion, Plaintiffs have failed to meet their initial burden. The motion for summary judgment shall be supported by affidavits, declarations, admissions, answer to interrogatories, depositions and matters of which judicial notice shall or may be taken. (CCP §437c(b)(1).) Plaintiffs’ only evidence here consists of a declaration by Plaintiffs’ counsel that states true and correct copies of Plaintiffs’ Complaint and Defendant’s Answer are attached. (See Bitondo Decl.) Even though the Complaint here is verified, “[i]t is generally understood, for instance, that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, fn. 7 (citations omitted).)

Moreover, even if the Court construed the verified Complaint as evidence, the Proof of Service for the Notice to Quit, attached to the verified Complaint, is signed by Plaintiff Mary Michaels, who does not indicate she is a registered process server. “Affidavits of service may not be relied on at trial to prove a three-day notice was served pursuant to §1162; testimony of the person who made the service is required.” (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 514.) However, where service is carried out by a registered process server and a proof of service is signed under a declaration of penalty of perjury, Evidence Code §647 applies to eliminate the necessity of calling the process server as a witness at trial. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427–1428.) Since the Proof of Service is not signed by a registered process server here, Plaintiffs have not met their burden of showing the Notice to Quit was properly served.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.