Judge: Anne Richardson, Case: 22STCV06139, Date: 2023-03-01 Tentative Ruling
Case Number: 22STCV06139 Hearing Date: March 1, 2023 Dept: 40
[TENTATIVE] RULING RE:
MOTION TO QUASH SERVICE OF SUMMONS AND FIRST
AMENDED COMPLAINT
Plaintiff alleges
that it acquired the real property commonly known as 5007 Ocean Front Walk, Marina
Del Rey, California (“Property”) pursuant to a grant deed which was recorded on
May 12, 2012. Plaintiff claims that in
2006, a promissory note secured by a deed of trust was executed in which the
Property was pledged as collateral for the loan pursuant to the deed of the
trust. The original lender under the
Note and Trust Deed was the Yoon Trust while the original borrower was
Stronghold Capital, LLC. Plaintiff
claims in May 2012, Plaintiff became the new borrower and owner of the
Property.
Based on
these facts, Plaintiff brought this action, alleging claims of (1) breach of
contract and (2) misrepresentation.
The
instant motion to quash service of summons on the First Amended Complaint
(“FAC”) and FAC were brought by specially appearing Defendants.
“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: 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), emphasis added.) A defendant has 30 days after the service
of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20,
subd. (a)(3).)
“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.’” (Summers v. McClanahan¿(2006) 140
Cal.App.4th 403, 413.) A proof of
service containing a declaration from a registered process server invokes a
presumption of valid service. (See¿American
Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390; see also
Evid. Code § 647.) This presumption is
rebuttable. (See¿id.) The party seeking to defeat service of
process must present sufficient evidence to show that the service did not take
place as stated. (See Palm Property
Investments, LLC v. Yadegar¿(2011) 194 Cal.App.4th 1419, 1428; cf.¿People
v. Chavez¿(1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the
opponent of that fact bears the burden of producing or going forward with
evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying
service took place without more is insufficient to overcome the
presumption. (See¿Yadegar, supra,
194 Cal.App.4th at 1428.)
Defendants
argue that Plaintiff fails to establish that proper service was accomplished as
to all defendants because Plaintiff did not allege that Defendant Yoon Trust
was served personally or otherwise.
Defendants claim that Plaintiff should have served two sets of papers
and that the single set of pleadings failed to specify to whom or in what
capacity service was being made.
In
opposition, Plaintiff argues that there is only one defendant in this case, Jun
I. Yoon, who serves in two capacities—as an individual and as a representative
for the trust. Plaintiff cites to case
authority which establishes that a trust is not a legal entity that can be
sued, and one must sue the trustee in his or her representative capacity.
The Court
agrees with Plaintiff in that Defendant Jun I. Yoon did not need to be served
two sets of papers. Although Defendants
argue that the pleadings failed to specify to whom or in what capacity service
was being made, the Court finds that Plaintiff’s failure to designate the
appropriate boxes did not prevent Defendants from receiving notice of this
action. Although the notice to the
person served box was left blank, the notice in the top left hand portion
states Notice to Defendant: Jun I. Yoon, an individual, and as Trustee of the
Jun I. Yoon Trust UDT August 15, 1994. The
Court finds this sufficient to show that Defendant Jun I. Yoon was served both
as to his individual and representative capacity. Additionally, the proof of service also
attaches the FAC. Thus, the Court finds
that Plaintiff substantially complied with the requirements to serve the
summons and complaint to Defendants to satisfy the notice requirement. (Carol
Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 862-63, Cory v.
Crocker Nat’l Bank (1981) 123 Cal.App.3d 665, 670-671.)
Defendants
also contend that the proof of service Plaintiff filed is false because it
identifies the party served as Jun I. Yoon.
Defendants argue this is false because the Summons itself did not
identify the party to be served such that the process server would not have
been in a position to make such a declaration.
The Court fails to follow Defendants’ argument since the parties were
identified in the Notice to Defendant portion of the summons. As discussed above, this is sufficient to
provide notice and Plaintiff’s failure to fill out the notice to the person
served box did not prevent Defendants from actually receiving notice.
Finally,
Defendants argue that the summons is invalid because it failed to specify that
it was purportedly beings served in conjunction with the FAC as opposed to
Plaintiff’s initial complaint. However,
Defendants do not argue that it never received the FAC. The Court finds that Plaintiff has satisfied
his burden in proving that proper service was accomplished as to all
Defendants. (Carol Gilbert, supra,
179 Cal.App.4th at p. 861 (“statutes should be liberally construed to uphold jurisdiction
where the defendant receives actual notice it is being sued.”))
In light of the
foregoing, the Court DENIES Defendants’ motion to quash service of summons and
the First Amended Complaint.