Case Number: BC672898 Hearing Date: March 22, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

ROGER MANLIN,

Plaintiff,

vs.

JEAN ELIZABETH JOHNSTON, et al.,

Defendants.

Case No.:

BC 672898

Hearing Date:

March 22, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

Background

Plaintiff Roger Manlin (“Manlin”), appearing in pro per, filed this action on August 21, 2017, relating to an alleged breach of an oral or implied rental agreement. The operative First Amended Complaint (“FAC”) was filed on November 6, 2017.

Specially appearing defendant Louis Johnston (“Johnston”) now moves to quash service of the summons and FAC on the basis that he was improperly served. Manlin opposes.

Evidence

The Court sustains Manlin’s objection to Exhibit A to the Declaration of James Saake.

Discussion

Code of Civil Procedure section 418.10 provides in part: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion … (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” ((Code Civ. Proc., § 418.10(a).) A defendant may move to quash service of summons for lack of jurisdiction based on ineffective service of process. ((Ziller Electronics Lab Gmbh v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.)

Here, the Proof of Service filed with the Court on January 18, 2018 states that Johnston was served by substituted service. The requirements for substituted service on an individual are detailed in Code of Civil Procedure section 415.20(b). That statute provides:

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.

Thus, a plaintiff may serve an individual defendant through substitute service when they cannot be personally served with reasonable diligence. The plaintiff may effect substitute service by leaving a copy of the summons and complaint at the defendant’s usual mailing address, with a person at least 18 years old that is “apparently in charge,” and thereafter mailing a copy of the documents to the same place. “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’” ((Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

On its face, the Proof of Service complies with the requirements set forth in Code of Civil Procedure section 415.20(b). The Proof of Service indicates that service was made via substitute service at 4304 Shepherds Lane, La Canada Flintridge, CA (the “Saake Residence”) in the presence of James Saake, and the FAC and summons were subsequently mailed to Johnston at the Saake Residence. Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. ((Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Further, the Proof of Service is signed under penalty of perjury by a registered process server, thus giving rise to a presumption of the facts stated therein. ((American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Johnston submits in his accompanying declaration that he moved out of the Saake Residence in June 2017. (Johnston Decl., ¶ 2.) However, he only attests to the fact that he has not received any mail from Manlin or from the process server. (Johnston Decl., ¶ 4.) Johnston does not present any evidence to rebut the presumption that the Saake Residence is his usual mailing address. Likewise, the other declarations submitted in support of the motion to quash do not present any evidence to rebut the presumption that the Saake Residence is where Johnston usually receives mail. Moreover, “[s]tatutes governing substitute service shall be ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant. . . .’” ((Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [internal citations omitted].) Here, it cannot be disputed that Johnston received actual notice of this action.

Conclusion

Based on the foregoing, Johnston’s motion to quash service of summons and complaint is denied. Johnston’s response thereto is due within 30 days of this ruling. The Court sets a Case Management Conference on June 4, 2018 at 8:30 a.m. in Dept. 50.

Manlin is ordered to provide notice of this ruling.

DATED: March 22, 2018

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court