Judge: Mark A. Young, Case: 20SMCV00486, Date: 2022-08-30 Tentative Ruling

Case Number: 20SMCV00486    Hearing Date: August 30, 2022    Dept: M

CASE NAME:           Liu, v. Liu, et al.

CASE NO.:                20SMCV00486 

MOTION:                  Motion to Quash Service of Summons

HEARING DATE:   8/30/2022

BACKGROUND

On March 26, 2020, Plaintiff Justin Liu filed this action against Defendants JCTLA Investment Corporation and Jean Liu for malicious prosecution, unjust enrichment, and breach of fiduciary duty. Plaintiff alleges that Ms. Liu breached her fiduciary duty to JCTLA when she interfered with JCTLA’s main asset – the 433 South Beverly Glen Boulevard, Los Angeles, California 90024 property (hereinafter, the “Property”). Plaintiff allegedly performed construction services on the Property and eventually got the Property rented. Defendants allegedly interfered with the rental income being generated by the Property thereby breaching various duties.

JCTLA has brought a cross-action against Plaintiff. JCTLA alleges that it owns the Property. JCTLA further alleges that Justin Liu embezzled funds that had been collected from tenants of the Property while managing the Property.

            On June 23, 2022, Plaintiff filed a proof of service of summons on Ms. Liu.  On July 13, 2022, Ms. Liu specially appeared and moved to quash service of summons. Plaintiff opposes.

Legal Standard

 “A defendant . . . 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 . . ..” (CCP § 418.10(a).) A court lacks jurisdiction over a party if there has not been proper service of process. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.)  The plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].)  

EVIDENTIARY ISSUES

Ms. Liu’s objections are SUSTAINED as to nos. 1, 4, 6, 7, and 9 against the Justin Liu Declaration; nos. 1-3 to Exhibit 1; and nos. 4-5 to the Tong Kuang Declaration.

The request for judicial notice is DENIED, but the exhibit is still considered as evidence through the Tong Kuang Declaration.

Analysis

Service

              “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Dill, supra. 24 Cal.App.4th at 1441-1442.) For persons outside of California, “if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence.”  “A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” (CCP § 415.40.)

            Plaintiff submits proof of service via mail. On June 22, 2022, Plaintiff’s counsel sent the Summons and other initial filing documents to Ms. Liu at #261 Tun Hwa South Road 3 F-R Section 1, Taipei, Taiwan, R.O.C. (the “261 Address”) by USPS Registered Mail with return receipt requested. (Escano Decl., ¶2, Ex. 1.) Counsel received the parcel back, marked “Refused,” on August 11, 2022. (Escano Decl., ¶3, Ex. 2.)

            Plaintiff also provides sufficient proof of Ms. Liu’s residency at that address. Ms. Liu does in fact reside at the 261 Address. (See Declaration of Justin Liu, ¶¶4-6; Declaration of Lui Ton Kuang, ¶¶3-9, Exhs. 3-9). Ms. Liu is one of many members of the family who all own units in the same building; and her car has been repeatedly photographed in the parking of the building, including as recently as July 14, 2022. (Id.).

Ms. Liu does not reasonably dispute that she was served in this action. She does not dispute that she received summons in this case via mail. Instead, she offers a legal conclusion that she has not been “served” with the summons. (Liu Decl., ¶ 2.) Otherwise, Ms. Liu only states that the address listed on the service of summons is not her “mailing address[.]” (Id., ¶ 3.) Even if believed, Ms. Liu does not go so far as to say this was not her residence. Instead, she confirms that she is a Taiwan resident, and only that she has never resided in California. (Id., ¶ 4.)

The Court finds Ms. Liu’s other arguments unpersuasive. Ms. Liu speculates in the memorandum that she did not reject the package herself, and that the doorman must have rejected it. Ms. Liu also highlights a minor, typographical inconsistency with the address between Exhibit 5 and the proof of service. Exhibit 5 states the address as being on the 4th floor, rather than “3 F-R,” which is presumably the 3rd floor. The address is otherwise consistent, down to the unit number.  The Court finds sufficient “other evidence” for actual delivery. The uncontroverted proof of service combined with the declarations submitted by both parties are consistent and suggest that service was completed.

Jurisdiction

            As Ms. Liu is a non-resident defendant, her motion properly challenges this Court’s jurisdiction. Plaintiff has the burden to demonstrate that jurisdiction exists over her. The Court will focus on specific jurisdiction.

A non-resident defendant may be subject to either general or specific jurisdiction. (Elkman v. National States Insurance Co. (2009) 173 Cal.App.4th 1305, 1314.) “Where general jurisdiction cannot be established, a court may assume specific jurisdiction over a defendant in a particular case if the plaintiff shows the defendant has purposefully availed himself or herself of forum benefits; [ie.] the nonresident purposefully directed its activities at forum residents or purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of local law. (Hanson v. Denckla (1958) 357 U.S. 235.) Specific jurisdiction involves a 3-part test: (1) the nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.”  (Jewish Defense Organization, Inc. v. Sup. Ct. of Los Angeles County (1999) 72 Cal.App.4th 1045, 1054 [purposeful availment exists where a defendant performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state].)

“[I]f a corporate officer may be held personally responsible for causing the corporation to act, that act may be imputed to the officer for purposes of establishing personal jurisdiction over him.”  (Seagate Technology v. A. J. Kogyo Co. (1990) 219 Cal.App.3d 696, 700.) “Notwithstanding that he is not present in the state, a natural person who commits a tort while acting on behalf of a corporation is subject to the jurisdiction of the state when the delict is intended to inflict tortious harm within the state…A natural person may also be subject to jurisdiction if the delict could reasonably be expected to inflict tortious harm within the state.” (Serafini v. Superior Court (1998) 68 Cal.App.4th 70, 81.)

Notably, the complaint is based on a malicious prosecution, allegedly instituted at the direction of Ms. Liu. This would make her liable for the malicious prosecution. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1131, fn. 11 [“A person who is injured by groundless litigation may seek compensation from any person who procures or is actively instrumental in putting the litigation in motion or participates after the institution of the action.”].) As alleged, Ms. Liu controlled JCTLA when the 2018 Lawsuit was filed and when it was dismissed. (Justin Liu Decl., ¶¶29-35; Ton Kuang Decl., ¶¶ 29-33.)   By conducting such litigation, Ms. Liu has purposefully availed herself of the privilege of conducting activities in California, thereby invoking the benefits and protections of this State’s laws. The exercise of jurisdiction would therefore be reasonable.

For these reasons, Ms. Liu’s motion to quash is denied.