Judge: Michael E. Whitaker, Case: 20STCV38210, Date: 2022-10-11 Tentative Ruling

Case Number: 20STCV38210    Hearing Date: October 11, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Tenuun Enkhbayar (“Defendant”) appears specially and moves to quash service of the summons and complaint.  Plaintiff Kinnya Nelson opposes the motion and Defendant replies to the opposition.

ANALYSIS

“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 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. (2) To stay or dismiss the action on the ground of inconvenient forum.”  (Code Civ. Proc., § 418.10, subd. (a)(1)-(2).) 

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“when a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service” ”].)  A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

“In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) A plaintiff may serve an individual defendant “by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . , in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint 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).)

Here, Plaintiff filed a proof of service on April 14, 2022, which reflects service on Defendant via substituted service at “1117 S Bedford Street, Apt. 201, Los Angeles, CA 90035” on April 9, 2022.  Plaintiff purportedly served Defendant via service on “Alan ‘Doe’ – Co Occupant.”  However, Defendant states, although he previously lived at 1117 S Bedford Street, he moved from the premises on August 2, 2021 and has no further connection to the address. (Declaration of Tenuun Enkhbayar, ¶¶ 4-6.) Accordingly, Defendant argues the substituted service on Defendant via “Alan ‘Doe’ ” is invalid.

In opposition, Plaintiff argues that service is proper for two reasons.

First, Plaintiff asserts that because she filed a proof of service that complies with the applicable statutory requirements, there is a rebuttable presumption of proper service which Defendant has failed to overcome. Plaintiff further argues that the Court should not accept Defendant’s “self-serving” declaration stating that he no longer lives at the address at issue anymore as sufficient evidence to meet his burden, citing to American Express Centurion v. Zara (2011) Cal.App.4th 383, 390. The Court rejects this argument and finds that Plaintiff has advanced sufficient competent evidence to rebut the presumption of proper service. Moreover, Plaintiff has not advanced additional evidence establishing that 1117 S Bedford Street, Apt. 201, Los Angeles, CA 90035 is Defendant’s dwelling house, usual place of abode, usually place of business, or usual mailing address. (See Code Civ. Proc., § 415.20, subd. (b).)  

Second, Plaintiff argues that because Plaintiff’s service was substantially complaint with statutory requirements, valid service was established. “[A] finding of substantial compliance can only be sustained where (1) the records shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice.” (American Express Centurion v Zara, supra, Cal.App.4th at p. 391.) The Court finds that the third requirement for substantial compliance is not met here. Plaintiff’s manner of serving the summons on an address where the Defendant no longer resides, and has no further connection to, did not make it highly likely to impart notice on Defendant.  

CONCLUSION AND ORDER

Consequently, the Court grants Defendant’s motion to quash service of the summons and complaint.

            Further, the Court vacates the Trial Setting Conference set for November 4, 2022 and sets an Order to Show Cause hearing on DECEMBER 13, 2022 at 8:30 A.M. in Department 32 regarding the dismissal of the action for failing to serve the summons and complaint within two years of commencing the action, and/or for failing to bring the action to trial within two years of commencing the action.  (See Code Civ. Proc., §§ 583.410 & 583.420, subd. (a).)  The Court may dismiss the action at the time of the Order to Show cause hearing if Counsel for Plaintiff and/or Plaintiff fail to appear, and/or fail to give good cause for the delay in serving the summons and complaint or in bringing the action to trial. 

The Clerk of the Court shall provide notice of the Court’s orders.