Judge Gregory Keosian, Case 21STCV12934 2022-07-25 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCV12934, Date: 2022-07-25 Tentative Ruling

Case Number: 21STCV12934 Hearing Date: July 25, 2022 Dept: 61

Defendant Min Hu’s Motion to Quash Service of Summons is DENIED. Defendant to answer within 30 days.

I. MOTION TO QUASH SERVICE OF SUMMONS

Code of Civil Procedure section 418.10, subd. (a)(1) states: “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.”

“‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)

While courts are not required to accept self-serving evidence — such as declarations that one was not served — submitted to support a motion to quash, facial defects of the proof of service will rebut its presumption of proper service. (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 390.) The burden is on a plaintiff to prove facts showing that service was effective. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

Substitute service is allowed when personal service cannot be effect by reasonable diligence by leaving the summons and complaint at the “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,” and by subsequently mailing a copy of the summons and complaint by first-class mail to the person to be served at the place the summons and complaint were left. (Code Civ. Proc., § 415.20, subd. (b).)

Defendant Min Hu argues that substitute service was not accomplished upon her in compliance with Code of Civil Procedure § 415.20 because the process server did not sufficiently attempt to accomplish personal service prior to substitute service, and also because no substitute service was actually accomplished in the manner described. (Motion at pp. 4–8.)

Defendant’s arguments are meritless. The process server diligently attempted personal service here. “Ordinarily, two or three attempts at personal service at a proper place and with correct pleadings should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 373.) The declaration of diligence here attached to the proof of service states that three attempts at service were made in the morning and evening of January 26 and the morning of January 29. The process server, Kevin Appleton, presents a supplemental declaration attesting to yet another attempt at service on Defendant on the morning of January 31, 2022. (Appleton Decl. ¶ 8.) Appleton further testifies that, because of his prior services of summons upon the Defendants in this case, Defendants likely recognized him, and for that reason refused to answer the door when he came calling, despite clear indications that they were home. (Appleton Decl. ¶¶ 3, 5–6.) The requirement of diligence was met in this case.

Substitute service was accomplished upon Defendant here through her husband, Defendant Zhong Fang. Zhong Fang offers a declaration stating that he was not served at the date and time in question, as he was at work. (Fang Decl. ¶ 9.) But Appleton conclusively refutes this assertion with a detailed declaration, explaining how on the morning in question, he witnessed a BMW vehicle pull into the driveway, witnessed Fang (whom he recognized from prior instances of service) getting out of the vehicle, handed the documents to Fang, and took a picture of Fang (and the vehicle) at the time. (Appleton Decl. ¶¶ 10–12; Exh. 4.) A later trace showed that the license plate of the vehicle was registered to Fang. (Appleton Decl. Exh. 3.) Although Hu herself testifies that she did not receive a copy of the summons and complaint in the mail, Appleton also rebuts this testimony with his own. (Hu Decl. ¶ 3; Appleton Decl. ¶ 13.) Indeed, Plaintiffs so thoroughly rebut this line of argument in their opposition that Defendant makes no attempt to resurrect it in reply.

The motion is DENIED.