Case Name: Wilmington Trust, National Association v. Nelson Herrera, et al.
Case No.: 18CV334162

I. Background

This is an unlawful detainer action brought by Wilmington Trust, National Association, as Successor Trust to Citibank, N.A., as Trustee for Bear Sterns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2007-1 (“Plaintiff”) against Nelson R. Herrera, Nenebeth T. Herrera, Maria Aires Tabula, John David Tabula, and Maria Sarmiento (collectively “Defendants”).

According to the allegations of the verified complaint, Plaintiff acquired the subject real property in March 2018 at a foreclosure sale conducted pursuant to a deed of trust executed by Nelson and Nenebeth Herrera. Plaintiff subsequently served Defendants a 90-day notice to vacate the premises and deliver possession. Defendants did not vacate the property within 90 days, refusing to deliver possession to Plaintiff. Plaintiff consequently seeks possession of the premises as well as holdover damages.

Plaintiff served the summons and complaint on Defendants as well as “All Unknown Occupants” by substituted service. Mark Gonzalez (“Gonzalez”) subsequently filed a prejudgment claim of right to possession on September 18, 2018, asserting he is an occupant of the subject property and acknowledging his understanding that he would be added as a defendant as a result of filing the claim. Lisa Peralta (“Peralta”) later filed her own prejudgment claim of right to possession on October 11, 2018 stating the same.

Concurrently with the filing of their respective prejudgment claims, Gonzalez and Peralta each filed a motion to quash service of the summons, which motions are currently before the Court. Plaintiff opposes both motions.

II. Discussion

Gonzalez’s and Peralta’s respective motions to quash are identical in all material respects. These parties are self-represented, and it appears Peralta used Gonzalez’s earlier-filed motion as the template for her own motion. The Court will therefore discuss the merits of their motions together, but first addresses an objection raised by Plaintiff to Gonzalez’s motion.

A. Objection to Gonzalez’s Motion

Plaintiff contends Gonzalez’s motion is procedurally defective because he never notified it or served it with the moving papers. Plaintiff states it only discovered the motion based on the Court’s order continuing the hearing from September 28, 2018 to October 15, 2018, and insists Gonzalez’s failure to serve the motion has severely prejudiced its ability to respond. Plaintiff concludes the motion should be summarily denied.

At the outset, the Court observes the proof of service attached to Gonzalez’s motion reflects it was served by mail on Plaintiff’s counsel—at the correct address—on September 18, 2018. Thus, there is no basis for concluding that Gonzalez failed to serve the motion; it is possible, for example, that the papers were delivered but inadvertently misplaced by Plaintiff’s counsel.

With that said, Plaintiff apparently was unaware of the motion prior to the first hearing date. And it appears Plaintiff still does not have a copy of the motion as it claims severe prejudice because it “is unaware of the basis of Gonzalez’s motion.” (Opp., p. 4:1-2.) While the Court could remedy the situation by continuing the hearing to give Plaintiff the opportunity to obtain a copy of the motion and prepare a directed opposition (see Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-698), there is no reason to believe any such opposition would differ from the substantive opposition Plaintiff filed in response to Peralta’s identical motion. The Court will therefore treat Plaintiff’s opposition to Peralta’s motion as directed to Gonzalez’s motion as well.

B. Merits of the Motions to Quash

Gonzalez and Peralta move to quash service of the summons pursuant to Code of Civil Procedure section 418.10 on the ground the Court lacks personal and subject matter jurisdiction over them because the summons was not served by statutorily authorized means and the 90-day notice to vacate the premises was not served on them.

As a preliminary matter, Gonzalez and Peralta improvidently refer to subject matter jurisdiction as a basis for their motions. “Subject matter jurisdiction…is the power of the court over a cause of action or to act in a particular way.” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1035.) There can be no debate the Court has jurisdiction to hear an unlawful detainer case. A motion to quash service of summons concerns personal jurisdiction, which “is not determined by the nature of the action, but by the legal existence of the party and either its presence in the state or other conduct permitting the court to exercise jurisdiction over the party.” (Id. at pp. 1034-1035.)
To that point, Gonzalez’s and Peralta’s contention that personal jurisdiction is lacking because they were not served with the 90-day notice does not implicate personal jurisdiction. While proper service of a notice to quit is a prerequisite to the right to possession in an unlawful detainer action, that requirement is merely an element of the action that must be alleged and proved as part of the merits of the case; satisfaction of that requirement is not necessary for the court to acquire personal jurisdiction over a defendant. (Borsuk v. Appellate Division of the Superior Court (2015) 242 Cal.App.4th 607, 613-615.) As such, a defendant may not challenge the adequacy of a notice to quit by means of a motion to quash service of summons. (Id. at pp. 610-611.)
Thus, the instant motions to quash are only appropriately brought on the ground of lack of personal jurisdiction for failure to properly serve the summons. Proper service of the summons and complaint in compliance with the Code of Civil Procedure is a prerequisite to acquiring personal jurisdiction over a defendant. (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150.) When service of a summons is defective, a defendant may file a motion to quash service on the basis the court lacks personal jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The burden is on the plaintiff to establish the facts of jurisdiction by demonstrating the validity of the service by a preponderance of the evidence. (Boliah v. Super. Ct. (1999) 74 Cal.App.4th 984, 991; Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize China Fellowship, Inc).)

Gonzalez and Peralta argue they were not properly served by substitute service because such service must be preceded by diligent attempts at personal service which did not occur here.
This argument is flawed because Plaintiff was authorized to serve unknown occupants by other means pursuant to Code of Civil Procedure section 415.46.

The Code of Civil Procedure does not mandate service of a summons and complaint on unknown occupants of the property at issue in an unlawful detainer action. Rather, in addition to serving the summons and complaint on a known tenant and subtenant, the plaintiff may opt to also serve a prejudgment claim of right to possession on any person who appears to be or who may claim to have occupied the premises when the action was filed. Such service must be made in accordance with subdivision (c) “by serving a copy of a prejudgment claim of right to possession…attached to a copy of the summons and complaint at the same time service is made upon the tenant and subtenant, if any.” (Code Civ. Proc., § 415.46, subd. (a).)

Plaintiff contends all unknown occupants (e.g., Gonzalez and Peralta) were validly served as provided in Code of Civil Procedure section 415.46, subdivision (c)(1), which states:

In addition to the service on an identified occupant, or if no occupant is disclosed to the officer or process server, or if substituted service is made upon the tenant and subtenant, if any, the officer or process server shall serve a prejudgment claim of right to possession for all other persons who may claim to occupy the premises at the time of the filing of the action by leaving a copy of a prejudgment claim of right to possession attached to a copy of the summons and complaint at the premises at the same time service is made upon the tenant and subtenant, if any, affixing the same so that it is not readily removable in a conspicuous place on the premises so that it is likely to give actual notice to an occupant, and sending the same addressed to “all occupants in care of the named tenant” to the premises by first-class mail.

Plaintiff filed proof of service reflecting all unknown occupants were served in accordance with section 415.16. The filing of a proof of service that complies with applicable statutory requirements creates a rebuttable presumption that service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal. App. 4th 1426, 1441.) That presumption has not been rebutted here.

Accordingly, Gonzalez’s and Peralta’s motions to quash are DENIED.