Superior Court of California

County of Los Angeles

THUONG LUONG,

Plaintiff,

vs.

VERONIKA MIKHAYLOVA, et al.,

Defendants.

Case No.: 23STCV20717

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: 08/29/23

Trial Date: N/A

Hearing date: April 16, 2024

Moving Party: Specially Appearing Defendant Veronika Mikhaylova (“Defendant”)

Responding Party: Plaintiff Thuong Luong (“Plaintiff”)

Motion to Quash Service of Process

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

The motion is DENIED.

Background

This action arises from the breach of a month-to-month rental agreement for a property located at 10523 Selkirk Lane, Los Angeles, CA 90077 (the “Property”). On August 29, 2023, Plaintiff Thuong Luong (“Plaintiff”) filed a Complaint against Defendants Veronika Mikhaylova (“Defendant”) and DOES 1 through 100, inclusive, alleging a single cause of action for breach of written contract.

A proof of service was filed indicating that Defendant was served with the summons and complaint by substituted service on September 5, 2023 at 10523 Selkirk Lane. (09/07/23 Proof of Service.) The proof of service is executed by registered process server Daniel Flores. (09/07/23 Proof of Service.) The summons and complaint were left with a John Doe, who is an occupant at 10523 Selkirk Lane, 35 years old, a Caucasian male, and who is 5”10 and 185 pounds. (09/07/23 Proof of Service.)

On October 12, 2023, Defendant filed and served the instant Motion to Quash Service of Process. Defendant’s motion is made on the grounds that she has never been served in compliance with the requirements of the California Code of Civil Procedure and there is no basis for finding that this Court has jurisdiction over her.

On October 13, 2023, the Court denied Defendant’s request to waive court fees, and requested that Defendant provide a copy of her most recent tax returns to the Court.

On November 1, 2023, the Court issued a Clerk’s Notice of Voiding of Filing which indicates that Defendant’s motion to quash was voided due to: (1) the denial of Defendant’s request to waive court fees; and (2) Defendant’s failure to make the payment or request a hearing about court fee waiver order. Where a court fee waiver application is denied and if the applicant “does not pay on time, the clerk shall void the papers that were filed without payment of the court fees and costs.” (Gov. Code, § 68634, subd. (g).)

On March 21, 2024, Defendant filed a Substitution of Attorney form indicating that she is now representing herself in pro per.

On April 3, 2024, Plaintiff filed and served an opposition to Defendant’s motion to quash. As of April 12, 2024, no reply papers have been filed.

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).) “[S]trict compliance is not required.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1436.) “In deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold jurisdiction of the court if actual notice has been received by the defendant.” (Ibid.) “Thus, substantial compliance is sufficient.” (Id. at p. 1437.)

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

The Validity of Defendant’s Motion to Quash

On its own motion, the Court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

As stated above, the Clerk of the Court voided Defendant’s motion to quash. (11/01/23 Clerk’s Notice of Voiding of Filing.) As such, the motion to quash is not an operative motion. Thus, the Court DENIES Defendant’s motion to quash on such grounds.

Even if Defendant’s motion were not void, the Court would have still denied Defendant’s motion to quash. In support of the motion, Defendant declares that: she has not been contacted by anyone with an attempt of service of the summons and she resided at the Property on September 15, 2023. (Mikhaylova Decl., ¶¶ 2-3.) Defendant states that she did not have a toddler at the time of purported service in her household, she did not have a male member in her household who could receive service on her behalf, and she did not receive copies of the summons and complaint by mail. (Mikhaylova Decl., ¶¶ 5-7.)

The Court would have found that Defendant’s declaration was self-serving and was not sufficient to overcome the presumption of proper service given that the summons and complaint was served on Defendant by a registered process server. Thus, the Court would have declined to accept Defendant’s declaration in support of the motion under Rodriguez v. Cho, supra¸236 Cal.App.4th 742, 751. Plaintiff’s counsel, Jacob H. Zadeh (“Zadeh”), has attested that Plaintiff was served via substitute service on September 5, 2023. (Zadeh Decl., ¶ 6.) The proof of service shows three attempts to personally serve Defendant with the summons and complaint. (Zadeh Decl., ¶ 3; Exh. 1.) As such, the Court would have found that substitute service was proper had Defendant’s motion been an operative pleading and not void.

Based on the foregoing, the Court DENIES Defendant’s Motion to Quash Service of Process.

It is so ordered.

Dated: April 16, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court