Judge: Deirdre Hill, Case: 22TRCV01513, Date: 2023-04-28 Tentative Ruling

Case Number: 22TRCV01513    Hearing Date: April 28, 2023    Dept: M

Hearing Date:                         April 28, 2023

Moving Parties:                      Defendant Vortex Alliance, Inc.

Responding Party:                  None

Motion to Quash Service of Summons and Complaint

The court considered the moving papers.

RULING

            The motion is GRANTED.  The proof of service filed on January 24, 2023 as to defendant Vortex Alliance is quashed.

BACKGROUND

            On December 16, 2022, plaintiff Jack Chueng dba Three-C Co (self-represented) filed an unlawful detainer complaint against David Tran and Vortex Alliance based on a three-day notice to perform covenants or quit for commercial property located at 14909 South Crenshaw Blvd., #108, Gardena.

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

            Defendant Vortex Alliance, Inc. requests that the court quash service of the summons and complaint on the ground that defendant was not properly served.

            Defendant contends that it does not have to proffer any evidence regarding the purported service until plaintiff first demonstrates that the complaint and summons were lawfully served.

            The proof of service as to Vortex Alliance filed on January 24, 2023 indicates that service of summons and complaint was by substitute service on January 16, 2023 by a non-registered process server.  As the proof of service is by a non-registered process server, under the Evidence Code stated above, it is not entitled to the presumption affecting the burden of producing evidence of the facts stated in the return. 

There is no opposition.  Plaintiff has not met his burden that defendant was properly served.

            The motion is GRANTED.

Moving defendant is ordered to give notice of the ruling.