Case Name: ASN San Jose, LLC v. Riley
Case No.: 18CV335613

This is an action for unlawful detainer. Previously, defendant Michelle Riley (“Defendant”) Defendant filed a peremptory challenge pursuant to Code of Civil Procedure section 170.6 as to Judge Overton. The challenge was granted and was reassigned to the instant department [Hon. Arand]. The Court [Hon. Overton] also ordered that the summons and complaint were able to be served upon Defendant by posting them on the premises and mailing them to Defendant at her last known address. Upon reassignment, the Court [Hon. Arand] vacated the prior order and then again ordered that the summons and complaint were able to be served upon Defendant by posting them on the premises and mailing them to Defendant at her last known address. On December 18, 2018, default was entered against Defendant. Defendant now moves to quash service of summons and moves for relief from default.

Regarding peremptory challenges

In her memorandum in support of the motion to quash, Defendant states that she “continues her peremptory challenge to Judges Carol Overton and Mary Arand, pursuant to Code of Civil Procedure § 170.6.” (Def.’s memorandum of points and authorities in support of motion to quash, pp.1:27, 2:1.) The Court has already granted her challenge as to Judge Overton. Additionally, the Court has denied her challenge as to Judge Arand since Defendant is entitled to only one challenge pursuant to 170.6. (See Code Civ. Proc. § 170.6, subd. (a)(4) (stating “no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section”).) The order that was reversed by the Appellate Division was made by Judge Overton, not Judge Arand. To the extent that Defendant again seeks to challenge Judge Arand, that request is again DENIED.

Motion for relief from default

Plaintiff argues that Defendant has not filed a responsive pleading to her motion to set aside the default; however, as Defendant states, she filed a second motion to quash in connection with the motion for relief from default. However, pursuant to Code of Civil Procedure section 473, subdivision (c)(1), the Court is authorized to grant relief to the opposing party as is appropriate when granting relief from default. Accordingly, Defendant’s motion for relief from default is GRANTED ON THE CONDITION that Defendant continue to pay rent when due until resolution of this case. The parties shall appear to discuss the amount and terms of payment of rent, and whether the Defendant is currently in default on payment of rent.

Motion to quash

As to the motion to quash, Defendant asserts that she has not received the summons. However, on November 28, 2018, the Court [Hon. Arand] ordered that the summons and complaint could be served upon Defendant by posting them on the premises and mailing them to Defendant at her last known address. Even if the papers were not handed to Defendant, service by posting and mailing is allowed in unlawful detainer actions. A proof of service of the summons indicates that the summons and complaint were served in accordance with Code of Civil Procedure section 415.45. A certified mail receipt to Defendant was also filed with the proof of service. Defendant’s argument that she was not properly served lacks merit. Accordingly, Defendant’s motion to quash is DENIED.

Defendant shall file a response to the complaint within 5 days of service of this signed order.

The Court will prepare the Order.