Judge: Lisa R. Jaskol, Case: 22STCV38872, Date: 2023-09-25 Tentative Ruling

Case Number: 22STCV38872    Hearing Date: September 25, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On December 14, 2022, Plaintiffs Erica Seldon (“Seldon”) and Venessa Hunter Patri (“Patri”) filed this action against Defendants Sunhae Ji (“Sunhae Ji”), Junghoon Ji ("Junghoon Ji"), and Does 1-10 for motor vehicle tort and general negligence.  On August 8, 2023, Plaintiffs amended the complaint to include Defendant Ean Holdings LLC as Doe 1. 

On February 10, 2023, Plaintiffs filed proofs of service which stated a process server served the summons, complaint, and other documents on Sunhae Ji and Junghoon Ji by substituted service on co-occupant Jake Joon on January 21, 2023, at an address on Windsor Circle in Cypress, California.  The proofs of service stated the process server made two unsuccessful attempts to serve Sunhae Ji and Junghoon Ji in person at that address, on January 19 and January 20, 2023, and mailed the documents to Sunhae Ji and Junghoon Ji on January 25, 2023. 

On April 18, 2023, Junghoon Ji filed an answer.  Plaintiffs extended the time for Sunhae Ji to file an answer or other responsive pleading to May 12, 2023. 

On May 12, 2023, Sunhae Ji, specially appearing, filed a motion to quash service of summons on complaint, to be heard on September 25, 2023.  On September 12, 2023, Plaintiffs filed an opposition. On September 18, 2023, Sunhae Ji filed a reply.  On September 19, 2023, Plaintiffs filed the Declaration of Steve Lowes. 

Trial is currently scheduled for June 12, 2024. 

PARTIES’ REQUESTS 

Sunhae Ji requests that the Court quash service of the summons and complaint. 

Plaintiffs request that the Court deny the motion. 

LEGAL STANDARD 

“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., § 415.20, subd. (b).) 

“ ‘Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfied the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.’ ” (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 443, quoting Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 741.) 

“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.” 

(Code Civ. Proc., § 418.10. subd. (a)(1).) 

A defendant may file a motion to quash service of summons on the ground that the court lacks jurisdiction over the defendant.  (Code Civ. Proc., § 418.10, subd. (a).)  A motion made under section 418.10 does not constitute an appearance unless a court denies the motion.  (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) (Cal. Practice Guide) ¶ 3:376, p. 3-116 [“If the motion is denied, defendant is deemed to have made a general appearance – waiving any jurisdictional objection – upon entry of the order denying the motion” (emphasis omitted)].) 

“ ‘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 facts requisite to an effective service.’ “  (Cal. Practice Guide, supra, ¶ 4:421.5, p. 4-72, quoting Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) 

DISCUSSION 

A.   Sunhae Ji's moving papers 

Sunhae Ji has submitted a declaration from Junghoon Ji stating that (1) Sunhae Ji is Junghoon Ji’s former wife, (2) Sunhae Ji never lived at the address listed in the proof of service and does not have a connection to the address, and (3) Sunhae Ji moved to South Korea around September 2022.  (Junghoon Ji Dec. ¶¶ 2-5.) 

As a result, Sunhae Ji argues, Plaintiffs have not served her at her “dwelling house, usual place of abode, usual place of business, or usual mailing address” as required by Code of Civil Procedure section 415.20, subdivision (b). 

B.   Plaintiffs’ opposition 

Plaintiffs argue that the declaration submitted by Junghoon Ji “is not based upon personal knowledge and does not set forth facts (or any facts) to support his conclusionary statements” in violation of California Rules of Court, rule 5.111(b)(2), and Evidence Code section 702, subdivision (a). 

Plaintiffs provide their attorney’s declaration stating that he asked his private investigator, Steve Lowes, “to locate defendant Sunhae Ji and, thereafter, provide me with this information as to where this Defendant may be served.  In connection with receiving this information, I directed my process server to her residential address of 9172 Windsor Circle, Cypress, CA. This was information from Mr. Lowes as the address where Defendant Sunhae Ji resided.”  (Declaration of Mark Waecker ¶ 6.) 

Plaintiffs also (belatedly) provided Steve Lowes’s declaration.  Lowes states: 

·       Lowes “consulted and used various proprietary databases that are maintained and up-to-date providing accurate information as to the location of individuals such as Defendant Sunhae Ji.”

·       “In connection with my efforts to locate Defendant Sunhae Ji, I developed the address of 9172 Windsor Cir., Cypress, CA 90630 as an address where Defendant Sunhae Ji resided.”

·       Lowes is “informed and believe[s] that this address is and was accurate and that Defendant Sunhae Ji lived and/or resided at this address . . . .”

·       Lowes “did not develop or see any information that Sunhae Ji had left the United States or was living at any other address other than the one w[h]ere substituted service was effectuated.” 

(Declaration of Steve Lowes ¶¶ 3-7.) 

C.    Analysis 

Plaintiffs ask the Court to strike Junghoon Ji’s declaration based on lack of personal knowledge.  However, based on Plaintiffs’ own proof of service, Junghoon Ji lived at the Windsor Circle address and would have had personal knowledge of whether Sunhae Ji also lived there on January 21, 2023, when Plaintiffs attempted substituted service.  (The Court does not rely on Junghoon Ji’s statement that Sunhae Ji moved to South Korea around September 2022.) Therefore, the Court overrules Plaintiffs’ objection. 

Plaintiffs have the burden of proving the facts requisite to an effective service of process.  (Cal. Practice Guide, supra, ¶ 4:421.5, p. 4-72.)  Plaintiffs have not carried their burden.  The private investigator’s declaration does not explain why he concluded Sunhae Ji lived at the Windsor Circle address at the time of the attempted service.  The Court is not required to accept the personal investigator’s “information and belief” assertion that Sunhae Ji lived at the address.  Plaintiffs have provided no other evidence that establishes this fact. 

 The Court grants the motion and quashes service of summons and complaint on Sunhae Ji. 

CONCLUSION 

The Court GRANTS specially appearing Defendant Sunhae Ji’s motion to quash service of summons on complaint.  The Court quashes service of the summons and complaint on Sunhae Ji.

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.