Judge: Michael E. Whitaker, Case: 21STCV37283, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV37283    Hearing Date: December 13, 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 Chi Yung Liu (Defendant) appears specially and moves to quash service of the summons and complaint by Plaintiff Jayne Marie Madden (Plaintiff).  Plaintiff opposes the motion.  Defendant replies.

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.”  (Code Civ. Proc., § 418.10, subd. (a)(1).) 

“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’ ”].)  

“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, on November 1, 2021, Plaintiff filed a proof of service which reflects service on Defendant via substituted service at 1144 Blaine Street, Apt 203, Riverside, CA 92507-7677 on October 22, 2021.  Plaintiff purportedly served Defendant via substitute service on “Jyun Nai – Co occupant.”  (See November 1, 2021 Proof of Service.)  The proof of service further states the process server mailed the documents to Defendant at the 1144 Blaine Street address on the same day.  (See November 1, 2021 Proof of Service.)

Defendant argues that substitute service is not in compliance with Code of Civil Procedure section 415.20 because Defendant did not reside at the 1144 Blaine Street address, nor was it his place of business at the time of service.  Defendant’s Counsel retained a private investigator, Franco Investigations to locate Defendant and determine if the Defendant was residing at the address where the alleged substituted service occurred at that time.  (Declaration of Christopher K. Opfell, Exhibit B.). The private investigator determined that Jun Nai did not know the Defendant or have knowledge of her whereabouts.  (Declaration of Christopher K. Opfell, Exhibit B.). Hyun Nai explained he contacted the lawyer listed on the documents served on him and was instructed to ignore the documents because they did not pertain to him and he did not have forwarding information for Defendant.  (Declaration of Christopher K. Opfell, Exhibit B.). Defendant also proffers a signed declaration by Jyun Nai confirming that Defendant was not residing at the 1144 Blaine Street address, and does not have any personal knowledge of Defendant nor Defendant’s whereabouts.  (Declaration of Christopher K. Opfell, Exhibit C.)

In opposition, Plaintiff argues that when the process server served Jyun Nai, Jyun Nai gave no indication to the process server that he was unaware of Defendant’s identity or whereabouts, but rather accepted service of process as a co-occupant of the residence.  (Declaration of Cynthia E. Allred, ¶ 7, Exhibit 3.)  Further, Plaintiff’s Counsel sought to verify the accuracy of the Defendant’s address and ran searches to verify the address Defendant provided to California Highway Patrol through Logan registration Service, Inc. as well as TransUnion.  (Declaration of Cynthia E. Allred, ¶¶ 3-5, 9.)  Plaintiff’s counsel sought confirmation from the United States Postal Service of any change to Defendant’s address.  (Declaration of Cynthia E. Allred, ¶ 10.). According to Plaintiff’s counsel, all searches verified the address at which Defendant was served.  (Declaration of Cynthia E. Allred.)  Additionally, Plaintiff argues that the private investigator report provided by Defendant is ambiguous.

            In reply, Defendant notes that Plaintiff fails to directly rebut the alleged phone conversation between Jyun Nai and Plaintiff’s counsel in which Jyun Nai claims he informed Plaintiff’s counsel that Defendant did not reside at the 1144 Blaine Street address, nor did he have any information regarding Defendant.  Plaintiff confirms that this call occurred but does not provide any further details as to what was discussed.  (Plaintiff’s Opposition, 4:1-2.)  Further, Defendant notes that while the private investigator report contains a few minor clerical errors, those errors are insufficient to render the report ambiguous.  The Court agrees.

CONCLUSION AND ORDER

            Accordingly, the Court finds that Plaintiff has failed to meet her burden to establish that the substitute service of the summons and complaint on Defendant is proper.  In particular, the Court finds that Plaintiff has not shown that 1144 Blaine Street, Apt 203, Riverside, CA 92507-7677 is Defendant’s dwelling house, usual place of abode, usual place of business, or usual mailing address. (See Code Civ. Proc., § 415.20, subd. (b).)   

Therefore, the Court grants Defendant’s motion to quash and orders the service of the summons and complaint on Defendant by substitute service quashed.

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