Judge: Frank M. Tavelman, Case: 22BBCV00266, Date: 2022-08-26 Tentative Ruling

Case Number: 22BBCV00266    Hearing Date: August 26, 2022    Dept: A

MOTION TO QUASH SERVICE OF SUMMONS

ALLEGATIONS:

Plaintiffs ACN Marketing Corp. (“ACN") and Ling Chau Investments, LLC (“LCI”, and together, “Plaintiffs”) filed suit against Mahmud Ulkarim (“Ulkarim”) and Megna Tofu Manufacturing Company, Inc. (“Megna”, and together, “Specially Appearing Defendants”) on April 25, 2022, alleging three causes of action: (1) Damages for Breach of Contract (Lease); (2) Damages for Breach of Contract (Notes); and (3) Damages for Breach of Contract (Inventory).

HISTORY:

The Court received the two Motions to Quash Service of Summons filed by both Specially Appearing Defendants on July 28, 2022; and the combined opposition filed by Plaintiffs on August 12, 2022. The Court has not received any reply.

RELIEF REQUESTED:

Specially Appearing Defendants move for an order quashing service of summons and complaint as to Ulkarim and Megna.

ANALYSIS:

I.          LEGAL STANDARD

The statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant. (CCP § 418.10 (a)(1).) CCP § 418.10 authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint. If the motion is timely made, “no act” by the party making such motion, “including filing an answer, demurrer or motion to strike,” shall be deemed a general appearance. (CCP § 418.10(e)(1).)

II.        MERITS

Specially Appearing Defendants argue in both motions that Ulkarim was not actually served by Plaintiffs’ agent because the service of summons represents that personal service was effected at 5:02pm on June 28, 2022 at 8740 Winnetka Avenue, Northridge, California 91324 on a Hispanic male. Specially Appearing Defendants argue that Ulkarim is not a Hispanic male and was attending a virtual mediation relating to Case No. 21VECV01765 from the physical location of 21021 Osborne St., Canoga Park, California 91304 at the time. (See Decl. Ulkraim.)

In opposition, Plaintiffs argue that the declarations of both Mahmud Ulkarim and Rahima Ulkarim are not credible, and that the case number referenced does not exist.

Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.)

Neither party contends that the proof of service does not comply with statutory standards, and so the service of summons creates a rebuttable presumption that service was proper. The Court has located and takes sua sponte judicial notice of active case under Case No. 21VECV01765 that also involves both Megna and Ulkarim. There appears to be a notice for entry of dismissal of both including both Megna and Ulkarim filed on August 10, 2022 pursuant to a settlement agreement. The Court considers this, along with the fact that Plaintiffs do not deny that Ulkarim is not Hispanic, as stated in the service of summons, and finds that Ulkarim’s declaration is credible, and rebuts the presumption that service was proper.

III.       CONCLUSION

The Court thus grants both motions.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Specially Appearing Defendants Mahmud Ulkarim and Megna Tofu Manufacturing Company, Inc.’s Motion to Quash Service of Summons (by Ulkarim) and Motion to Quash Service of Summons (by Megna) came on regularly for hearing on August 26, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO QUASH SERVICE OF SUMMONS (BY ULKARIM) IS GRANTED.

THE MOTION TO QUASH SERVICE OF SUMMONS (BY MEGNA) IS GRANTED.

IT IS SO ORDERED.

DATE:  August 26, 2022                               _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles