Judge: Joel L. Lofton, Case: 23AHCV01071, Date: 2024-04-25 Tentative Ruling
Case Number: 23AHCV01071 Hearing Date: April 25, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: April 25, 2024 TRIAL DATE: None Set
CASE: 5623 PECK ROAD,
LLC vs CULTIVA GROUP, et al.
CASE NO.: 23AHCV01071
MOTION TO QUASH SERVICE OF SUMMONS
MOVING PARTY: Defendants Cultiva Group and Qirong
Lin
RESPONDING PARTY: Plaintiff
5623 PECK ROAD, LLC
SERVICE: Filed March 10, 2024
OPPOSITION: Filed April 12, 2024
REPLY: None Filed
RELIEF
REQUESTED
Defendants specially appear to (1)
quash service of process of summons, and (2) vacate and set aside the defaults
and Judgment-Unlawful Detainer against Defendants.
BACKGROUND
This is an unlawful detainer case filed on May
11, 2023 by Plaintiff 5623 PECK ROAD, LLC against Defendants
Cultiva Group and Qirong Lin, claiming past-due rent totaling $137,435.90,
attorney fees, forfeiture of the lease agreement, damages accruing daily since
January 1, 2023, and additional expenses around $20,000. On October 16, 2023,
Plaintiff obtained a Judgment-Unlawful Detainer for past-due rent in the amount
of $137,435.90; Holdover damages for $177,933.24; Attorney fees in the amount
of $2,467.41; and Costs of $1,127.19. A Credit of $216,176.78 was stated, and
the Total Judgment was for $102,787.56.
On March 11, 2024, Defendants filed
the instant motion to quash service of summons and vacate and set aside
defaults and judgment-unlawful detainer. On April 12, 2024, Plaintiff filed an
opposition. To date, no reply has been filed.
TENTATIVE RULING
Defendants’ motion to quash service of summons
and motion to vacate are DENIED.
LEGAL STANDARD
Motion to Quash
“(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.”
(Code of Civil Procedure section 418.10, subd. (a).)
“When a defendant challenges the
court's personal jurisdiction on the ground of improper service of process ‘the
burden is on the plaintiff to prove the existence of jurisdiction by proving,
inter alia, the facts requisite to an effective service.’ ” (Summers v.
McClanahan (2006) 140 Cal.App.4th 403, 413.)
“In lieu of
personal delivery of a copy of the summons and complaint to the person to be
served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a
summons may be served by leaving a copy of the summons and complaint during
usual office hours in his or her office or, if no physical address is known, at
his or her usual mailing address, other than a United States Postal Service
post office box, with the person who is apparently in charge thereof, and by
thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of
the summons and complaint at a mailing address, it shall be left with a person
at least 18 years of age, who shall be informed of the contents thereof.
Service of a summons in this manner is deemed complete on the 10th day after
the mailing.” (Code Civ. Proc. section 415.20, subd. (a).)
“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.” (Code Civ. Proc. section 415.20,
subd. (b).)
Motion to Vacate
“The court may, upon any terms as may be just, relieve a party or his or
her legal representative from a judgment, dismissal, order, or other proceeding
taken against him or her through his or her mistake, inadvertence, surprise, or
excusable neglect…¿ [The application]¿shall be made within a reasonable time,
in no case exceeding six months, after the judgment, dismissal, order, or
proceeding was taken.”¿ CCP¿§¿473(b).¿
¿
Although a trial court has discretion to vacate the entry of a default or
subsequent judgment, this discretion may be exercised only after the party
seeking relief has shown that there is a proper ground for relief, and that the
party has raised that ground in a procedurally proper manner, within any
applicable time limits.”¿Cruz v.¿Fagor¿America, Inc. (2007) 146
Cal.App.4th 488, 495. “The defendant must … demonstrate a satisfactory excuse
for not responding to the original action in a timely manner.”¿Id.¿at
504. Moving parties have the initial burden to prove excusable neglect by a
preponderance of competent evidence.¿Kendall v. Barker¿(1988) 197
Cal.App.3d 619, 624.¿¿¿
¿
CCP¿§ 473(d) provides in relevant part that “[t]he court may,¿upon motion
of the injured party…set aside any void judgment or order.”¿CCP¿§ 473(d)¿
CCP section 473.5 permits the Court to set aside a default and default
judgment when the service of a summons has not resulted in actual notice to a
party in time to defend the action. ¿CCP section 473.5 requires the motion to
be accompanied by an affidavit showing under oath that the party's lack of
actual notice in time to defend the action was not caused by the party's
avoidance of service or inexcusable neglect. ¿The notice of motion shall be
served and filed within a reasonable time, but in no event exceeding the
earlier of the following:¿
¿
1) two years after entry of a default judgment against him or her;
or¿¿
2) 180 days after service on him or her of a written notice that the
default or default judgment has been entered. ¿¿
DISCUSSION
Defendants argue that the service of
the summons and complaint was not properly executed and that the motion to
quash service of summons should be granted accordingly. As to Cultiva Group, Defendants
claim that the appropriate service should have been made to a corporate officer
or authorized agent as stipulated by Civil Procedure Code § 416.10. However,
the service was made via substitute service to Rito Lin, an employee who does
not meet the requirements of an officer or director authorized to receive service.
Further, Defendants claim the proof of service lacked a declaration of
diligence that should have outlined efforts made to serve an authorized agent,
and Rito Lin was incorrectly deemed a person in charge for service purposes. As
to Qirong Lin, Defendants argue that effective service was not possible since
Cultiva Group and Qirong Lin had vacated the premises previously leased to them
as of March 1, 2023, having subleased it to another company, SGS. Since they no
longer occupied the premises, a “Co-worker” could not have been authorized or
capable of receiving service on behalf of Qirong Lin. Defendants state that Plaintiff
was aware of their new location yet failed to serve them properly. Furthermore,
Qirong Lin, in his declaration, affirms that he did not receive any of the
pleadings related to the action until he was served with Applications for
Judgment Debtor’s Exams in February 2024. Defendants claim that this suggests
that neither Cultiva Group nor Qirong Lin had any knowledge of the summons, the
ongoing lawsuit, or the subsequent defaults and Judgment-Unlawful Detainer
issued against them.
In opposition, Plaintiff argues that
service was carried out in accordance with statutory standards by a registered
process server, thereby establishing a rebuttable presumption of proper
service. According to Evidence Code section 647, Plaintiff states the return of
a registered process server establishes this presumption, which shifts the
burden of producing evidence to the party challenging the service. Plaintiff
also states that Cultiva Group was personally served on May 25, 2023, by the
process server through Rito Lin, an employee at the premises at the time of
service. As to Qirong Lin, Plaintiff states that he was served by substituted
service on May 26, 2023, also through Rito Lin at the same location. Plaintiff
contends that these proofs of service meet all statutory requirements, hence
presuming that service was proper. Furthermore, Plaintiff argues that Defendants’
declarations are vague and fail to provide substantial evidence to counter the
presumption of proper service. Finally, Plaintiff addresses the jurisdiction of
the court over the matter, noting that since they obtained full possession of
the premises on February 24, 2024, any motion by Defendants to set aside the
judgment concerning possession is moot. Plaintiff claims that since the issue
of possession has been resolved, there are no grounds for the Court to
reconsider the default judgment related to it.
The Court finds that Plaintiff
establishes a rebuttable presumption of proper service under Evidence Code
section 647, which effectively shifts the burden of proof to the defendants to
demonstrate that the service was improper. Plaintiff shows that service of the
summons and complaint on Defendants was executed according to statutory
requirements, employing a registered process server. Specifically, Plaintiff shows
that Cultiva Group was personally served on May 25, 2023, by the process server
through Rito Lin, who was an employee present at the premises. Furthermore, Plaintiff
contends that Qirong Lin received service through substituted service on May
26, 2023, also via Rito Lin at the same location. However, the Court finds that
Defendants fail to rebut this presumption. Further, the Court notes that since Plaintiff
obtained full possession on February 24, 2024, any dispute over the service’s
validity in relation to the possession is rendered moot, as the primary issue
has been resolved.
CONCLUSION
Defendants’ motion to quash service of summons
and motion to vacate are denied.
Moving
Party to give notice.
Dated: April 25,
2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit. alhdeptx@lacourt.org