Judge: Deirdre Hill, Case: 22TRCV00417, Date: 2023-01-25 Tentative Ruling

Case Number: 22TRCV00417    Hearing Date: January 25, 2023    Dept: M

Hearing Date:                         January 25, 2023

Moving Parties:                      Defendants Sung Soo Park and Kyung Mee Jyung

Responding Party:                  Plaintiff Mary Maguire

Motion to Quash Service of Summons

The court considered the moving, untimely opposition, and reply papers.

RULING

            The motion is GRANTED.  The proofs of service of summons filed on September 29, 2022 as to defendants Sung Soo Park and Kyung Mee Jyung are quashed.

BACKGROUND

            On June 2, 2022, Mary Maguire filed a complaint against Sung Soo Park, Kyung Mee Jyung, Eun Bin Park, Eun Jae Park, Awesome Medical Company, and HepaHope for (1) fraud and deceit, (2) conversion, (3) elder abuse under Welfare & Institutions Code § 15610 et seq., (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and (6) breach of contract. 

            On October 17, 2022, the court sustained with leave to amend defendant Eun Jae Park’s demurrer as to the 1^st, 3^rd, and 4^th causes of action and sustained the demurrer without leave to amend as to the 2^nd and 5^th causes of action.  The motion to strike was deemed moot.

            On November 4, 2022, plaintiff filed a FAC for (1) fraud and deceit, (2) elder abuse, (3) IIED, and (4) breach of contract.

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.”

DISCUSSION

            Defendants Sung Soo Park and Kyung Mee Jyung request that the court quash service of the summons and complaint on the ground that they were not properly served.

            The proofs of service filed on September 29, 2022 indicate that moving defendants were served by substitute service at 23809 Anza Avenue, Unit A, Torrance, CA 90505 on September 13, 2022 on Eun Bin Park, son, by a registered process server.

            Under CCP §415.20(b), “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served 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 other than a United States Postal Service post office box, 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 other than a United States Postal Service post office box, 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

            Defendants assert that 23809 Anza Avenue is not their dwelling house, usual place of abode, usual place of business, or usual mailing address.  Rather, defendant Eun Bin Park, moving defendants’ son, resides at that address by himself.  Thus, defendants argue, they were not properly served by substitute service.  See Eun Bin Park, Sung Soo Park, and Kyung Mee Jyung declarations.

            In opposition, plaintiff contends that moving defendants reside at the Anza Avenue address based on the investigator’s report and that there is no information that they reside at any other address.  See Thomas Carter decl., Exh. A (investigator’s report dated April 26, 2022).  Plaintiff’s counsel explains that after the Parks failed and refused to provide their new address (after vacating the property), he asked his investigator to locate them so that they could be served, referencing Exh. A.  The process server made multiple attempts to serve the Parks at the Anza Avenue address, but they refused to open the door.  Counsel was then forced to hire another investigator to stake out the Anza Avenue property to attempt to serve the Parks and “finally caught Eun Bin Park outside and was able to serve him and his parents through substituted service.”  After the motion was filed, counsel states that he asked his investigator to do another search to see if the Parks had moved somewhere else and that the investigator’s report showed that the Parks are still residing with their son on Anza Avenue.  Carter decl., Exh. B.

            In reply, defendants object to the evidence as based on hearsay and not authenticated.  Defendants point out that Exh. A is dated April 2022, five months before the alleged service of process.  Exhibit B is not dated.  Defendants reiterate that the Anza Avenue address is not their principal residence or where they are likely to receive actual notice.

            The court finds that defendants have rebutted the presumption that they were properly served.  However, plaintiff has not met her burden of providing sufficient evidence to show that defendants were properly served via substitute service at their dwelling house, usual place of abode, usual place of business, or usual mailing address.  Plaintiff’s declaration does not support the assertion that moving defendants resided at the Anza Avenue address on the purported date of service, as the reports on which plaintiff rely are merely conclusory, without any evidence to support their conclusions.

            Accordingly, the motion is GRANTED.

            Moving defendants are ordered to give notice of the ruling.