Judge: Michael E. Whitaker, Case: 24SMCV01703, Date: 2025-03-13 Tentative Ruling


Case Number: 24SMCV01703    Hearing Date: March 13, 2025    Dept: 207

TENTATIVE RULING

 

DEPARTMENT

207

HEARING DATE

March 13, 2025

CASE NUMBER

24SMCV01703

MOTION

Motion to Quash Service

MOVING PARTY

Defendant Sheng Chen

OPPOSING PARTY

Plaintiff Teresa Norton

 

MOTION

 

            Defendant Sheng Chen (“Defendant”) appears specially and moves to quash service of the summons and complaint.  Plaintiff Teresa Norton opposes the motion, and Defendant replies.

 

EVIDENTIARY OBJECTIONS

 

            The Court rules as follows with respect to Plaintiff’s evidentiary objections:

 

1.     Overruled

2.     Overruled

3.     Overruled

4.     Sustained as to what Ms. Xue and Mr. Lie purportedly told Mr. Adlersberg.  Overruled otherwise.

5.     Overruled

6.     Overruled as to “Attached hereto as Exhibit “E” is a true and correct copy of the Declaration of Shelly Xue.”  Sustained otherwise.

7.     Overruled

8.     Overruled

9.     Overruled

10.  Overruled

11.  Overruled

12.  Overruled

13.  Overruled

14.  Overruled

15.  Overruled

16.  Overruled

 

LEGAL STANDARDS

 

“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.)  

 

First, “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (Code Civ. Proc. § 415.10.)  Alternatively, 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).)

 

DISCUSSION

 

            Plaintiff filed the operative complaint on April 10, 2024.  The proof of service, which Plaintiff filed on January 23, 2025, indicates that on October 26, 2024, Plaintiff served the summons and complaint on Defendant by substitute service by leaving the documents at Defendant’s home with “Shelly Xue.  Wife and Co-occupant.  Asian Female.  40-45 Years.  52” 120Lbs. Black Hair.” 

 

            Defendant moves to quash service on the grounds that he does not own or live at the address where the summons and complaint were served, and instead lives with his wife in China, where they were on the date of the purported service.  In support, Defendant has provided the attorney declaration of Timothy G. Sarmiento, which provides:

 

3. My firm was retained by Mr. Chen’s insurance carrier in April of 2024 to represent him in this action. To date, despite attempts at all known contact information, my office has not been able to speak with Mr. Chen or make any contact with him. In our efforts to contact Mr. Chen, we learned that he lives in China, along with his wife, Zhenzhen Dong.

 

[…]

 

6. Upon learning of the alleged service of summons, which at the time the Proof of Service had not yet been filed, my office sent a letter to Mr. Chen on January 8, 2025 at the 743 E. Mandevilla Way address. To date, Mr. Chen has not responded to that correspondence.

 

7. In an effort to locate and make contact with Mr. Chen, my firm retained a private investigator, Geoffrey Adlersberg. On January 29, 2025, Mr. Adlersberg went to 743 E. Mandevilla way to try to locate Mr. Chen. When he arrived, he was greeted by Shelly Xue […] Shortly thereafter, a younger gentleman came to the door and identified himself to Mr. Adlersberg as Xingshen “Eric” Li. […]

 

(Sarmiento Decl. at ¶¶ 3, 6-7.)

 

            Defendant also provides the Declaration of Geoffrey Adlersberg, Sarmiento’s special investigator, which provides:

 

4. On January 29, 2025, l went to the last known address of Defendant, Sheng Chen, at 743 E. Mandevilla Way, Azusa, CA 91702. Upon arrival, l noticed a charcoal grey colored lnfiniti QX60 with California License Plate number 8JOA 750 parked in the driveway.

 

5. I knocked on the front door and was greeted by a middle-aged Asian female. I asked for Sheng Chen and was told by the woman that Mr. Chen did not live there. I then asked her for Mr. Chen's wife, and was told that Mr. Chen's wife, along with Mr. Chen, do not live at this residence as they live in China.

 

6. Shortly thereafter, a younger Asian American male came to the door and he spoke fluent English. I explained the nature of my visit and asked for his name, which he stated was Eric Li. Mr. Li stated he was a friend of Mr. Chen's and that Mr. Chen and his wife live in China and occasionally come to the United States to visit.

 

(Adlersberg Decl. ¶¶ 4-6.)

 

            Defendant further provides the Declaration of Xingchen “Eric” Li, which provides:

 

2. I reside at 743 E. Mandevilla Way, Azusa, CA 91702, along with my wife, Ying "Shelly" Xue. We have lived at this address since 2017. My wife and I are and have been the only occupants of this address since 2017.

 

3. The Plaintiff in this matter, Sheng Chen, is not the owner of 743 E. Mandevilla Way, Azusa, CA 91702, and he has not resided there at any time since my wife and I began living there in 2017.

 

4. Mr. Chen resides in China along with his wife, Zhenzhen Dong. 743 E. Mandevilla Way, Azusa, CA 91702 is not Mr. Chen's dwelling house or usual place of abode. Mr. Chen visits the United States, he stays at another house he owns located at 2576 Westwood Blvd., Los Angeles, California 90064.

 

5. The last time I saw Mr. Chen was in September of 2024 when he was last visiting the United States. I have not seen or spoken with Mr. Chen since September 2024.

 

6. Since 2017, including October of 2024, my wife and I have been the sole occupants of 743 E. Mandevilla Way, Azusa, CA 91702.

 

7. On October 26, 2024, Sheng Chen and his wife, Zhenzhen Dong were not present at 743 E. Mandevilla Way, Azusa, CA 91702. They were at home in China at that time.

 

8. On the morning of October 26, 2024, my wife, Ms. Xue, was at home by herself. I later became informed that a man came to the house to drop off a packet of papers at approximately 9:00 a.m. My wife told me that she was asked if she was Xingchen's wife, and she said, "yes." Then the gentleman handed her the papers and. said, “you’ve been served." My wife was not informed of the contents of the papers. When we noticed the papers were for Sheng Chen, my wife realized that she thought the man was asking her if she was "Xingchen's" wife. The pronunciation of my legal name, Xingchen, is nearly identical to the pronunciation of "Sheng Chen."

 

9. My wife is not and has never been Mr. Chen's wife. Mr. Chen is a friend of ours and neither my wife nor myself are related to Mr. Chen in any way.  I have not and have never been authorized to act as an agent on behalf of Mr. Chen, and neither has my wife.

 

(Li Decl. at ¶¶ 2-9.)

 

            Finally, Defendant provides the declaration of Ying “Shelly” Xue, which provides as follows:

 

2. I reside at 743 E. Mandevilla. Way,' Azusa, CA 91702, along with my husband, Xingchen "Eric" Li. We have lived at this address since 2017. My husband and I are and have been the only occupants of this address since 2017.

 

3. The Plaintiff in this matter, Sheng Chen is not the owner of 743 E. Mandevilla Way, Azusa, CA 91702, and he has not resided there at any time since my husband and I began living there in 2017.

 

4. Mr. Chen resides in China along with his wife, Zhenzhen Dong. 743 E. Mandevilla Way, Azusa, CA 91702 is not Mr. Chen's dwelling house or usual place of abode. It is my understanding that when Mr. Chen visits the United States, he stays at another house he owns in Westwood, Los Angeles, California.

 

5. The last time I saw Mr. Chen was in September of 2024 when he was last visiting the United States. I have not seen or spoken with Mr. Chen since September 2024.

 

6. Since 2017, including October of 2024, my husband and I have been the sole occupants of 743 E. Mandevilla Way, Azusa, CA 91702.

 

7. On October 26, 2024, Sheng Chen and his wife, Zhenzhen Dong were not present at 743 E. Mandevilla Way, Azusa, CA 91702. To my knowledge, they were at home in China at that time.

 

8. On October 26, 2024, at approximately 9:00 a.m., I was at home by myself when a gentleman came to my front door and handed me papers, but he did not inform me of what they were or what the purpose for his visit was. He asked me if I was Xingchen's wife, to which I said, "yes," and then he told me I've been served, and then he left. I was confused, but then realized that he may have asked me if I was "Sheng Chen’s" wife. The pronunciation of my husband's name sounds the same as the pronunciation of "Sheng Chen."

 

9. Mr. Chen is not my husband. Mr. Chen is a friend of my husband's. I am not related to Mr. Chen in any way. I am not and have never been authorized to act as an agent on behalf of Mr. Chen.

 

(Xue Decl. ¶¶ 2-9.)

 

            Plaintiff opposes the motion on the grounds that (1) Plaintiff’s investigative search results produced the Mandevilla address as a contact address for Defendant; (2) counsel cannot represent Defendant in the filing of this motion because they admit they have been unable to contact Defendant; and (3) the evidence in support of the motion is inadmissible hearsay.  In opposition, Plaintiff advances the declarations of Jorge Rivera, the process server, and Vincent P. Sorentino, counsel for Plaintiff.  Neither declaration is sufficient to meet Plaintiff’s burden to establish personal jurisdiction over Defendant by effectuating proper service of the summons. 

 

            And although Plaintiff contends the investigative search results indicated the service address is a valid address for Defendant, even after ignoring the hearsay statements, Defendant has presented evidence demonstrating that the service address is not owned by Defendant, nor is it Defendant’s residence. 

 

            Regarding counsel’s authority to file the instant motion, the Court agrees that, having been retained by Defendant’s insurance company to protect Defendant’s interests in this litigation, it was not improper for counsel to specially appear to file a motion to quash, providing evidence that Defendant had not, in fact, been properly served.

 

CONCLUSION AND ORDER

 

            Therefore, the Court finds Defendant has rebutted the presumption of proper service of the summons and complaint in the proof of service, and in turn, the Court finds that Plaintiff has not his burden in demonstrating that Defendant was properly served with the summons and complaint by substituted service to establish personal jurisdiction.    

 

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

 

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

 

 

DATED:  March 13, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court