Judge: Deirdre Hill, Case: 22TRCV01512, Date: 2023-05-10 Tentative Ruling

Case Number: 22TRCV01512    Hearing Date: May 10, 2023    Dept: M

Hearing Date:                         May 10, 2023 at 8:30 a.m.     

Moving Parties:                      Defendant Vortex Alliance, Inc. (“Defendant”)

Responding Party:                  None

Motion to Quash Service of Summons and Complaint

            The Court has considered the moving papers. No opposition or reply have been filed.

RULING

            The motion is DENIED.

BACKGROUND

            On December 19, 2022, plaintiff Jack Cheung dba Three-C Co (self-represented) filed an

unlawful detainer complaint against defendants David Tran and Vortex Alliance, Inc. based on a three-day notice to perform covenants or quit for the property at 14909 South Crenshaw Blvd., #201, Gardena, CA 90249.

            On January 20, 2023, defendant Vortex Alliance, Inc. (“Vortex”) filed a Motion to Quash Service of Summons and Complaint. On March 3, 2023, the Court granted that motion.

            On April 3, 2023, defendant Vortex Alliance filed the instant Motion to Quash Service of Summons and Complaint in connection with plaintiff’s service of the summons and complaint on Vortex on March 30, 2023. Plaintiff has not opposed the motion and Vortex has not replied.

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

            Defendant Vortex Alliance requests that the court quash service of the summons and complaint. Vortex argues that the summons and complaint “have not been lawfully served” on it but does not explain why. Vortex contends that it is not required to proffer any evidence regarding the purported service.

            The proof of service filed on April 3, 2023, indicates that a registered process server substitute served Maria Garcia, agent of Vortex, via a “Jessica Jane Doe – hispanic, female age 40, ht 5’5”, wt 165, brown hair, brown eyes” at the property location at 11:35 a.m. on March 30, 2023.

            Under CCP §1162, “(b) The notices required by Section 1161 may be served upon a commercial tenant by any of the following methods:

(1) By delivering a copy to the tenant personally.

(2) If he or she is absent from the commercial rental property, by leaving a copy with some

person of suitable age and discretion at the property, and sending a copy through the mail

addressed to the tenant at the address where the property is situated.

(3) If, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated. Service upon a subtenant may be made in the same manner.

(c) For purposes of subdivision (b), ‘commercial tenant’ means a person or entity that hires any real property in this state that is not a dwelling unit, as defined in subdivision (c) of Section 1940 of the Civil Code, or a mobilehome, as defined in Section 798.3 of the Civil Code.”

            On its face, the proof of service indicates that plaintiff complied with CCP § 1162(b)(2), as the summons and complaint were left at the commercial property by leaving a copy with some person of suitable age and discretion at the property and thereafter mailing.

            Moreover, since service was performed this time by a registered process server, the presumption of the facts stated in the return under Evidence Code § 647 applies and therefore shifts the burden to Vortex. Vortex has not presented any evidence to indicate that the service of process was performed improperly here.

            Accordingly, the motion is DENIED.

Vortex is ordered to give notice of this ruling.