Judge: Michael E. Whitaker, Case: 24SMCV01307, Date: 2024-04-29 Tentative Ruling

Case Number: 24SMCV01307    Hearing Date: April 29, 2024    Dept: 207

TENTATIVE RULING

MOTION

            Specially appearing Defendant Pico Youth and Family Center, a 501(c)(3) Non-Profit (“Defendant”) moves to quash service of the summons and complaint on the basis of lack of personal jurisdiction.  The motion is unopposed.

LEGAL STANDARDS

“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 for one or more of the following purposes: (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, subd. (a)(1).) 

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“when a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service’ ”].)   A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

            “In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.  (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) 

For service on persons within California, generally, service of summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” a plaintiff may serve an individual defendant “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 . . . , 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 . . . , 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.”  (Code Civ. Proc., § 415.20, subd. (b).) 

A court may also exercise jurisdiction over an individual who consents to such jurisdiction.  (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658.)  “Express consent to a court's jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence.”  (Ibid. [cleaned up].) 

ANALYSIS

As a threshold matter, the Court notes that Defendant did not provide a proof of service, demonstrating that the motion to quash was properly served on Plaintiff.  (Code Civ. Proc., § 1005, subd. (a)(4) & (b) [written notice shall be given of all moving and supporting papers for a motion to quash summons at least 16 court days prior to the hearing.])  Therefore, without proof that Defendant provided proper notice to Plaintiff, the Court cannot grant Defendant’s motion to quash.

Furthermore, Defendant contends that Plaintiff’s five-day unlawful detainer summons is invalid and therefore does not confer personal jurisdiction on Defendant because the “three day notice to pay or quit” attached to the complaint is defective on its face, as it does not provide notice as to when, where, and how the demanded rent could be paid “with legal certainty.”

Code of Civil Procedure section 1161 provides:

When the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon the tenant and if there is a subtenant in actual occupation of the premises, also upon the subtenant.

The notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agricultural lands, if the tenant has held over and retained possession for more than 60 days after the expiration of the term without any demand of possession or notice to quit by the landlord or the successor in estate of the landlord, if applicable, the tenant shall be deemed to be holding by permission of the landlord or successor in estate of the landlord, if applicable, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during that year, and the holding over for that period shall be taken and construed as a consent on the part of a tenant to hold for another year.

The Three Day Notice to Pay Rent or Quit attached to Plaintiff’s verified complaint indicates:

PLEASE TAKE NOTICE that you are justly indebted to the owner of the herein-described premises; and notice is hereby given that pursuant rental agreement under which you hold possession, there is now due, unpaid and delinquent rent in the total sum of

THIRTY EIGHT THOUSAND, EIGHT HUNDRED EIGHTY-TWO DOLLARS AND TWENTY-FIVE CENTS ($38,882.25)

This total amount owing represents rent due for the following period:

$7,776.45 due from November 1, 2023 through November 30, 2023

$7,776.45 due from December 1,2023 through December 31, 2023

$7,776.45 due from January 1, 2024 through January 31,2024

$7,776.45 due from February 1, 2024 through February 29. 2024

$7,776.45 due from March 1, 2024 through March 31, 2024

WITHIN THREE (3) DAYS excluding Saturdays, Sundays and other judicial holidays after service on you of this notice, you are hereby required to pay the amount of the above stated rent in full OR quit the subject premises, move out, and deliver up possession to the owner and/or his authorized agent.

[…]

YOU ARE FURTHER NOTIFIED THAT PAYMENT SHALL BE MADE TO:

LANDLORD/OWNER: PS & RS LLC

Payments shall be made payable to: PS & RS LLC

Person to Pay: PRADEEP KUMAR SHASTRI (An Individual's Name)

Address to Pay/Payments shall be delivered to:

4693 SIERRA MADRE ROAD, SANTA BARBARA, CA 93110

Phone Number:  (310)266-9661

Payment may be made at any time within the time stated: Monday through Friday 9:00 AM through 4;00 PM. Please note that Saturday, Sunday and Legal Holidays are not included in the 3-day period

THIS NOTICE IS PROVIDED TO YOU IN ACCORDANCE WITH CALIFORNIA CODE OF CIVIL PROCEDURE §1161.

[…]

(Ex. B to Verified Complaint.)  Specifically, Defendant argues that this notice is legally uncertain because of (1) “the simultaneous inclusion and exclusion of Saturdays, Sundays and ‘judicial’ or ‘legal holidays[;]’” and (2) the requirement that payment be made to Pradeep Kumar Shastri, as opposed to a department of the LLC or to the company. 

            But the Notice does not simultaneously include and exclude weekends and holidays.  The top of the notice indicates “WITHIN THREE (3) DAYS excluding Saturdays, Sundays and other judicial holidays” whereas the portion of the Notice directing Defendant where and how to make payment indicates “Please note that Saturday, Sunday and Legal Holidays are not included in the 3-day period.”  The Court notes that “excluded” and “not included” have the same meaning.

            Nor does the fact that the notice specifies that Defendant is to make payment to Pradeep Kumar Shastri make the notice legally void for vagueness.  To the contrary, the directions for making payment are very clear.

            Defendant also argues that the three day notice to pay or quit was served outside the 1-year timeframe, because the outstanding amount due of $117,804.46 divided by the $167 daily rental value is greater than one year of past due rent.  The Court is uncertain how, or from where, Defendant calculated the $117,804.46  figure; the Notice indicates the past due rent balance is $38,882.25.  $38,882.25 divided by the $167 daily rental value is approximately 233 days – well under a year. 

CONCLUSION AND ORDER

            For the foregoing reasons, the Court denies Defendant’s Motion to Quash.  Further, the Court orders Defendant to file and serve a response to the Complaint on or before May 13, 2024.

            The Clerk of the Court shall provide notice of the Court’s ruling.     

DATED:  April 25, 2024                                ___________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court