Judge: Maren Nelson, Case: 20STCV13063, Date: 2023-09-29 Tentative Ruling

Case Number: 20STCV13063    Hearing Date: September 29, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Wang’s motion to quash is GRANTED. The claim against Wang is ordered dismissed, without prejudice.

On 4/2/2020, Plaintiff Miawa Investment, Inc. and Maggie-Dawson, Inc. (collectively, Plaintiffs) filed suit against Zhou Cai, and Vista Selection, Inc., alleging: (1) breach of contract; and (2) fraud.

            On 5/26/2020, Zhou Cai and Vita Selection, Inc. filed a cross-complaint against Miawa Investment, Maggie-Dawson, Inc., Juan Li, and Seven Bubble, Inc., alleging: (1) breach of contract; (2) common counts; (3) fraud; (4) intentional tort; and (5) general negligence.

            On 3/1/2022, Vista Selection, Inc. filed a cross-complaint against MKM Trading, LLC and Christie Ly (collectively, MKM Defendants), alleging: (1) breach of contract; and (2) fraud.

            Now, specially appearing Defendant Xiaoliang Wang (Wang) moves to quash Plaintiff’s service of summons and Complaint.

            The motion is unopposed.

Discussion

Wang argues that the proof of service filed to show service of him is a sham. The proof of services states that Wang was personally served at 3263 Ridgefield Way, Dublin, CA 94568, on 07/01/2022, at 04:00 p.m.  However, Wang submitted a declaration stating that this is impossible because at the time he was working as a manager in a company located at 1849 El Camino Real, Burlingame, CA 94010. In support, Wang provided declarations from several of his colleagues, all of whom corroborate Wang’s working status and location at the time of the alleged service of process.

After review, the Court finds that Wang’s evidence is sufficient to overcome the presumption of proper service, and indicate that the proof of service is falsified. This is especially true given that the motion is unopposed by Plaintiff.

Moreover, Wang argues that the claim should be dismissed against him for a failure to prosecute. Here, this action was commenced on 4/2/2020. The proof of service here was filed on 7/1/2022. Thus, even assuming the proof of service was real, it would still have constituted service more than two years after the commencement of the action. CCPs section 583.420(a) provides that the Court may dismiss an action for delay in prosecution where service is not made within two years after the action is commenced against the defendant. (CCP §583.420(a) (1.) Plaintiff did not oppose this request and thus is considered to have conceded to it on the merits.

Thus, on either basis, the Court finds the motion should be granted. Based on the foregoing, Wang’s motion to quash is granted. The claim against Wang is ordered dismissed, without prejudice.

It is so ordered.

Dated:  September    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.