Judge: Deirdre Hill, Case: 22TRCV001230, Date: 2023-02-16 Tentative Ruling
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Case Number: 22TRCV001230 Hearing Date: February 16, 2023 Dept: M
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Superior Court
of Southwest
District Torrance Dept. M |
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CHEN
ZHENG, |
Plaintiff, |
Case No.: |
22TRCV001230 |
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vs. |
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[Tentative]
RULING |
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DAVID
LAIRD, et al., |
Defendants. |
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Hearing
Date: February 16,
2023
Moving
Parties: Defendants David Laird and Deborah Laird
Responding
Party: Plaintiff Chen Zheng
Motion to Quash
Service of Summons
The court considered the moving and
opposition papers.
RULING
The motion is DENIED. Defendants are ordered to file a responsive
pleading within five days.
BACKGROUND
On November 16, 2022, plaintiff Chen
Zheng filed a UD complaint against David Laird and Deborah Laird based on a three-day
notice to pay rent or quit for 409 15th Street, Manhattan Beach, CA
90266 for the period April 1, 2022 through November 30, 2022, based on monthly
rent of $7,200.
On January 17, 2023, the court
granted plaintiff’s application for order to post.
LEGAL
AUTHORITY
CCP §418.10 states: “(a) 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.
(2) To stay or dismiss the action
on the ground of inconvenient forum.
(3) To dismiss the action pursuant
to the applicable provisions of Chapter 1.5 (commencing with Section 583.110)
of Title 8.” This section provides the
exclusive procedure for challenging personal jurisdiction at the outset. Roy v.
Superior Court (2005) 127 Cal. App. 4th 337, 342. Although defendant is the moving party, the
burden of proof is on plaintiff to defeat the motion by establishing that
jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal.
App. 3d 703, 710.
Under Evidence Code § 647, “[t]he
return of a process server registered pursuant to Chapter 16 (commencing with
Section 22350) of Division 8 of the Business and Professions Code upon process
or notice establishes a presumption, affecting the burden of producing
evidence, of the facts stated in the return.”
Under Evidence Code § 604, “[t]he effect of a presumption affecting the
burden of producing evidence is to require the trier of fact to assume the
existence of the presumed fact unless and until evidence is introduced which
would support a finding of its nonexistence, in which case the trier of fact
shall determine the existence or nonexistence of the presumed fact from the
evidence and without regard to the presumption.
Nothing in this section shall be construed to prevent the drawing of any
inference that may be appropriate.”
Under CCP §1162, “(a) Except as
provided in subdivision (b), the notices required by Sections 1161 and 1161a
may be served by any of the following methods:
(1) By delivering a copy to the
tenant personally.
(2) If he or she is absent from his
or her place of residence, and from his or her usual place of business, by
leaving a copy with some person of suitable age and discretion at either place,
and sending a copy through the mail addressed to the tenant at his or her place
of residence.
(3) If such place of residence and
business cannot be ascertained, or a person of suitable age or discretion there
can not be found, then by affixing a copy in a conspicuous place on the
property, and also delivering a copy to a person there residing, if such person
can be found; and also sending a copy through the mail addressed to the tenant
at the place where the property is situated. Service upon a subtenant may be
made in the same manner.”
DISCUSSION
Defendants David and Deborah Laird (self-represented)
request that the court quash service of the summons and complaint on the ground
“that service of the Summons has not yet been properly effectuated.”
Defendants assert that they are
aware that an order to post and mail was issued on January 17, 2023 but to
date, neither have been done. They
acknowledge that the “motion is filed solely to prevent a default in case the
Plaintiff makes that false claim of service.”
Defendants contend that should proper service be effectuated, defendants
will withdraw the motion.
In opposition, plaintiff argues that
the motion should be denied because the motion “admits it is precautionary and
does not attack any actual claimed means of service.” Plaintiff notes that it filed proofs of
service.
On January 30, 2023, plaintiff filed
proofs of service indicating that the summons and complaint were posted on
January 21, 2023, at 10:00 a.m. and mailed by certified mail on January 23,
2023 to defendants by a registered process server.
The court finds that proper service
was effectuated. Defendants’ motion has
no merit.
The motion is DENIED.
Plaintiff is ordered to give notice
of the ruling.