Judge: Margaret L. Oldendorf, Case: 23AHCV00652, Date: 2023-10-03 Tentative Ruling

Case Number: 23AHCV00652    Hearing Date: October 3, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This action stems from a domestic violence incident. Plaintiff and former husband Fuxin Sun alleges that when the police were summoned to their home following the incident, the police believed Defendant and former wife Lin Gan’s version of the events, which was false. As a result, Sun alleges he was arrested and held for two days before being released.

          Before the Court is Sun’s motion for an order holding Gan criminally accountable for having filed what Sun contends is a “false” proof of service. As this is not a criminal court and as Sun has not cited any legal authority permitting this Court to provide the relief requested, the motion is denied.        

II.       LEGAL STANDARD

          The memorandum of points and authorities cites Penal Code §§115, 118, and 126.

III.     ANALYSIS

          It is Sun’s contention that because he did not receive a copy of Gan’s answer, the proof of service attached to the answer must be false. That is certainly a possibility. Another possibility is that the answer was lost in the mail. To the extent the proof of service is false, which has not been established, it is not clear what relief that would entitle Sun to.

          The proof of service attached to the answer complies with the requirements of Code Civ. Proc. §1013a (1). Consequently, service is presumed valid in the absence of contrary evidence, at which point it is up to the trier of fact to make a determination:

          “(Evid.Code, § 641 [a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail]; 1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, §§ 67, 78, pp. 216, 219.) . . . When the foundational facts are established, a presumption affecting the burden of producing evidence obligates the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced to support a finding of its nonexistence—in which event the trier of fact determines the existence or nonexistence of the fact from the evidence and without regard to the presumption. (§ 604.) Although the presumption disappears where . . . it is met with contradictory evidence, inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place.” Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.

          Here, Sun provides purportedly contrary evidence in the form of his declaration. Sun declares that he resides at the address to which the answer was said to have been mailed, but he never received it. This is sufficient to make the presumption of service disappear, leaving the trier of fact to make a determination regarding the validity of service.

Without more evidence, the Court declines to find that service was invalid here. Gan timely filed an answer and Sun is apparently in receipt of a copy of it. To the extent there was a defect with service, Sun’s due process rights have not been shown to be impacted.

IV.     ORDER

          Sun’s motion for an order that the proof of service attached to Gan’s answer is “inauthentic” is denied.     

          The Clerk is ordered to give notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT