Judge: Colin Leis, Case: 22GDCV00306, Date: 2022-08-25 Tentative Ruling

Case Number: 22GDCV00306    Hearing Date: August 25, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant Qiujin Li

RESPONDING PARTY:       Plaintiffs Wan Yan Ye, Ying Ping Li, Jian Ying Chen, and Xiaojie Wang

Defendant Quijin Li’s Motion to Quash Service of Summons and Verified Complaint

The court considered the moving papers, opposition, and reply filed in connection with this motion. The court did not consider Hovig Meguerditchian’s untimely surreply declarations.

BACKGROUND

            Plaintiffs filed this action on August 25, 2022 against, among others, Defendant Qiujin Li (“Li”).

            On July 7, 2022, Plaintiffs filed a Proof of Service of Summons showing that Li was personally served by a registered process server with the summons and complaint on June 24, 2022, at 5:58 p.m. at 721 Fairview Ave., Unit A, Arcadia, California 91007 (the “Property”).

            Li now moves to quash service of the summons.

DISCUSSION

“When a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) The filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration complies with the statutory requirements regarding such proofs.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163 [internal quotations omitted].)

Proof of service made pursuant to Code of Civil Procedure section 415.10 (personal delivery) requires an “affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter.” (Code Civ. Proc., § 417.10, subd. (a).) Here, the proof of service complies with the statutory requirements because the time, place, and manner of service are included. The proof of service also includes an attestation under penalty of perjury that a copy of the summons and complaint was “personally delivered” to Li. This attestation is in accordance with Code of Civil Procedure section 415.10, which provides that a summons and complaint “may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”

Li contends that the proof of service is untruthful, and in support, Li attests to the fact that she was at the Property (her residence) around 6 p.m. on June 24, 2022, and that she did not see any documents in front of the Property, did not see anyone in the near vicinity, and did not see anyone attempting to serve her with documents. (Li Decl., ¶ 3.) Plaintiffs counter with a declaration from the process server, who states that he had attempted service several times, and on his fourth attempt, he was able to cross paths with Li (described as an Asian woman in her 40’s, with brown hair and eyes, 5’5” and 140 pounds). (McQuilkin Decl., ¶ 4.) The process server states that he announced service of legal documents to Li, that Li then turned around and walked away to her parked car and drove off. (McQuilkin Decl., ¶ 4.) The process server then placed the documents on the porch. (McQuilkin Decl., ¶ 4.)

Personal service can be effectuated even if the summons and complaint are not delivered into the hands of the person to be served. (Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 259-260 [service was proper where process server approached the defendant in his car, explained the nature of the documents through the defendant’s window, and when the defendant refused to accept service, placed the documents under the windshield wiper in plain view of the defendant].) Here, however, the court cannot based on the evidence presented determine whether service was properly effectuated. In light of the competing declarations, the court finds that an evidentiary hearing is necessary to determine the credibility of the declarants.

CONCLUSION

Based on the foregoing, the court continues the hearing on Li’s motion to quash to _________, 2022, at 8:30 a.m., in Department 3.

The court sets an evidentiary hearing for ________, 2022, at 8:30 a.m., in Department 3.

Li is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 25, 2022

_____________________________

Colin Leis

Judge of the Superior Court