Superior Court of California

County of Los Angeles

YANG HAI, etc.,

Plaintiff,

vs.

GOLDEN ARCUS INT’L CO., etc., et al.,

Defendants.

Case No.: 23STCV19432

DEPARTMENT 45

[TENTATIVE] RULING

Complaint Filed: 08/15/23

Trial Date: N/A

Hearing date: May 7, 2024

Moving Party: Specially Appearing Defendant Anita Wu (“Wu”)

Responding Party: Unopposed

Motion to Quash Service of Summons and Complaint

The Court has considered the moving papers. No opposition papers were filed.

The motion is MOOT and is taken OFF-CALENDAR due to Defendant Anita Wu being dismissed from this action on November 17, 2023.

Background

This is an action arising from the alleged failure to pay wages. On August 15, 2023, Plaintiff Yang Hai, an individual and on behalf of aggrieved employees (“Plaintiff”) filed a Complaint against Defendants Golden Arcus Int’l Co, Yu Zhou, Anita Wu (“Wu”) (collectively “Defendants”), and DOES 1 through 20, inclusive, alleging the following causes of action: (1) failure to pay minimum wages in violation of Lab. Code §§ 1194, 1194.2, 1197, and Wage Order No. 5 of the IWC; (2) failure to furnish wage and hour statements in violation of Lab. Code §§ 226 and 226.3; (3) failure to maintain accurate payroll records in violation of Lab. Code §§ 226, 1174, and 1174.5; (4) failure to pay meal and rest period compensation in violation of Lab. Code § 226.7; (5) failure to pay overtime compensation in violation of Lab. Code §§ 510 and 1194; (6) waiting time penalties in violation of Lab. Code §§ 201 through 203; (7) unfair business practices in violation of Bus. & Prof. Code § 17200 et seq.; (8) retaliation in violation of Lab. Code § 1102.5; (9) wrongful termination in violation of public policy; and (10) recovery of civil penalties under the Labor Code Private Attorney General Act.

On September 20, 2023, Plaintiff filed a proof of service indicating that Defendant Wu was served with the summons and complaint by substitute service on September 6, 2023 at 12:00 PM at 5343 W. Imperial Highway, Ste 700, Los Angeles, CA 90045. Also, on September 20, 2023, Plaintiff filed a declaration of due diligence as to service of the summons and complaint on Defendant Wu and a declaration of mailing of the summons and complaint as to Defendant Wu. The proof of service was executed by a registered process server.

On November 6, 2023, Defendant Wu, specially appearing, filed and served the instant Motion to Quash Service of Summons and Complaint.

On November 17, 2023, pursuant to a request for dismissal filed by Plaintiff, Defendant Wu was dismissed from the Complaint without prejudice.

As of May 3, 2024, no opposition was filed as to Defendant Wu’s motion to quash.

Legal Standard

“A defendant who takes the position that the service of summons as made upon him did not bring him within the jurisdiction of the court, may serve and file a notice of motion to quash the service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “The effect of such notice is to place upon the plaintiff the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Ibid.) “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 . . . [t]o 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).) Personal service is accomplished when a copy of the summons and complaint is delivered to the person to be served. (Code Civ. Proc., § 415.10.)

In order for substitute service to be valid, a copy of the summons and complaint must be mailed “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.” (Code Civ. Proc., § 415.20, subd. (b).) “A plaintiff may serve individual defendants through substitute service when they cannot be personally served with reasonable diligence.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.) “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as reasonable diligence.” (Ibid., internal quotations omitted.)

“[T]he filing of a proof of service creates a rebuttable presumption that . . . service was proper.” (Dill v. Berquist Construction Co., supra, 24 Cal.App.4th 1426, 1441.) “[A] registered process server’s declaration establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) “[A] registered process server’s declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho, supra, 236 Cal.App.4th 742, 750.) A court is “not required to accept . . . self-serving evidence contradicting the process server’s declaration.” (Id. at p. 751.)

Discussion

Defendant Wu provides a declaration in support of the motion in which she declares the following: at the time of alleged service, she was residing in Wuhan, China and has been residing in Wuhan, China since April of 2023. (Wu Decl., ¶ 7.) Ms. Wu states that she is currently working in China and does not maintain any business relations in the United States. (Wu Decl., ¶ 10.) Ms. Wu states that she currently resides in Wuhan, China and has no future plans to return to the United States. (Wu Decl., ¶ 10.)

The Court finds that given that the motion is unopposed, there is an inference that the motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Defendant Wu attests that she was not served with the Summons and Complaint and was residing in China at the time of service. The “[f]ailure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person.” (In re Alyssa F. (2003) 112 Cal.App.4th 846, 852.) Here, Plaintiff has not met her burden of proving that service is proper given the lack of opposition to the motion.

Irrespective of such fact, the Court finds that the instant motion is moot as Defendant Wu has been dismissed from this action without prejudice. (11/13/23 Request for Dismissal.) Due to the dismissal of Defendant Wu being entered by this Court, there is no operative Complaint against Defendant Wu. Defendant Wu has been dismissed from this action.

The Court therefore finds that Defendant’s Motion to Quash Service of Summons and Complaint is MOOT and is taken OFF-CALENDAR.

It is so ordered.

Dated: May 7, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court