Judge: Peter A. Hernandez, Case: 21STCV11742, Date: 2023-05-23 Tentative Ruling
Case Number: 21STCV11742 Hearing Date: May 23, 2023 Dept: K
1. Plaintiff Dehui Zeng’s Motion for
Sanctions to Defendants’ Attorney Anita Susan Brenner Charged with Perjury is
DENIED.
2. Plaintiff Dehui Zeng’s Motion for Sanctions to Defendants’ Attorney An Thien Tran is DENIED.
3. Defendant Tian Jiao Sun, LMFT’s Motion to Quash Service of Summons and Complaint is GRANTED.
BBackground
On September 22, 2022, Plaintiff Dehui Zeng (“Plaintiff”) filed a 715-page First Amended Complaint (“FAC”), asserting causes of action against Henry Chiu (“Chiu”), Mia Lei (“Lei”), Araceli Monge (“Monge”), Vannarith Khiev, Ah Chin Pee (“Pee”), Linda Baik, Vict Vianonte, Annabelle G. Cortez, Philip L. Soto, Stephen Marpet, Marcellous Glasper (“Glasper”), Gibran Bouayad (“Bouayad”), Jackie Montano (“Montano”), Lap Man Lee (Tony Lee) (“Lee”), Karlyn Phan (“Phan”), Sarina Pan (“Pan”), Jean Chow (“Chow”), Denise Poon, Jannie Quan (“Quan”), Nancy Whang, Mr. Lai & Mrs. Lai (Miles Zeng and Grace Zeng’s Caregiver), Mr. Chang & Ms. Wu (Rosie Zeng and Mike Zeng’s Caregiver), Juan Guzman, Jacqueline I. Castle, Johnny H. Wen, Sun H. Lui, Wendy Dang, Tara Newman, Shyan Chao, Tian Jiao Sun and Does 1-30.
On November 2, 2022, this case was transferred from 29 of the Personal Injury Court to this instant department.
On April 10, 2023, the court sustained Chow’s, Lee’s, Lei’s, Monge’s, Pan’s, Pee’s, Phan’s and Quan’s demurrer to Plaintiff’s FAC without leave to amend, granted Chiu’s Special Motion to Strike, sustained Poon’s demurrer to Plaintiff’s FAC without leave to amend, granted Khiev’s Special Motion to Strike, sustained the Honorable Annabelle G. Cortez’s, the Honorable Philip L. Soto’s and the Honorable Tara Newman’s, Judges of the Superior Court of California. County of Los Angeles, Victor G. Viramontes’, Judge of the Superior Court of California, County of Los Angeles (erroneously sued as Vict Vianonte) and Stephen C. Marpet’s demurrer without leave to amend, sustained Wen’s demurrer without leave to amend, and granted Glasper’s, Bouayad’s and Montano’s Motion to Quash Service of Summons.
On April 14, 2023, an “Order of Dismissal and Judgment” was filed as to the Honorable Annabelle G. Cortez, the Honorable Philip L. Soto and the Honorable Tara Newman, Judges of the Superior Court of California. County of Los Angeles, Victor G. Viramontes, Judge of the Superior Court of California, County of Los Angeles (erroneously sued as Vict Vianonte) and Stephen C. Marpet; on April 17, 2023, a “Notice of Entry of Judgment” was filed as to these defendants.
On April 17, 2023, Plaintiff filed a Notice of Appeal.
On April 21, 2023, an “Order of Dismissal and Judgment” was filed as to Chiu, Chow, Lee, Lei, Monge, Pan, Pee, Phan, Quan, Poon and Khiev; that day, another “Order of Dismissal and Judgment” was filed as to Wen.
On April 27, 2023, a “Notice of Entry of Judgment and Exhibit 1” was filed as to Chiu, Chow, Lee, Lei, Monge, Pan, Pee, Phan, Quan, Poon and Khiev. On April 27, 2023, a “Notice of Entry of Judgment and Exhibit A” was filed as to Wen.
1. Motion for Sanctions re: Attorney Brenner (filed 12/14/2022)
Plaintiff requests that the court sanction Attorney Anita Susan Brenner (“Brenner”). Plaintiff asserts that Brenner committed perjury by representing in a declaration filed with the court on October 21, 2022 that “[t]he packets did not contain the operative 715-page First Amended Complaint.”
Plaintiff has failed to support the instant motion with any legal authority. Plaintiff does not provide the court with any information as to the nature of the sanctions sought. Further, the motion was not properly translated from Mandarin Chinese into English.
At any rate, Brenner has provided the court with declarations from Francine Robles (“Robles”) and Denise Poon (“Poon”) which support Brenner’s statement made above. Robles attests that on September 27, 2022, Plaintiff came to the office with 14 envelopes addressed to various staff at the DCFS Asian Pacific Program (Robles Decl., ¶ 2), that she contacted Poon, the duty supervisor, because she does not speak Mandarin and could not communicate with Plaintiff (Id.), that Poon came to the lobby to pick up the envelopes (Id.), that Plaintiff had left by the time Poon arrived (Id.), that Poon took the envelopes (Id.) and that she did not open the envelopes (Id.). Poon attests that on September 27, 2022, the staff at the office reception desk called her to advise that Plaintiff came to the office with 14 envelopes addressed to various staff at the DCFS Asian Pacific Program (Poon Decl., ¶ 2), that she informed the receptionist via telephone that Plaintiff could leave the envelopes with the front desk (Id.), that later that day, she went out to the lobby to pick up the 14 envelopes from the receptionist (Id.), that the envelopes did not contain the FAC, which she is informed and believes is over 700 pages (Id.), that none of the envelopes were thick enough to hold a document of that size (Id.), that the envelopes each contained a summons and a few pages of a complaint (Id.) and that attached as Exhibit 1 is a true copy of the materials that were in the envelope addressed to her (Id.)
Also, Brenner has expressly advised that the defects in service were waived by the general appearance for Chui, Chow, Lee, Lei, Monge, Pan, Pee, Phan, Quan, Khiev and Poon. Brenner’s clients are no longer involved in this action, pursuant to an “Order of Dismissal and Judgment” filed April 21, 2023.
The motion is denied.
2. Motion for Sanctions re: Attorney Tran (filed 01/30/2023)
Plaintiff requests that the court sanction Attorney An Thien Tran (“Tran”). It appears that Plaintiff asserts Tran lied about the non-receipt of Plaintiff’s discovery responses.
Again, Plaintiff has failed to support the instant motion with any legal authority. Plaintiff does not provide the court with any information as to the nature of the sanctions sought, aside from the following unclear “proposal” that Tran be ordered “to immediately hand over to the court all the trap issues sent to the plaintiff for human rights violations, privacy violations, crimes of fraud, harassment, perjury, and court deception.” Further, the motion was not properly translated from Mandarin Chinese into English. Tran’s client is no longer involved in this action, pursuant to an “Order of Dismissal and Judgment” filed April 21, 2023.
The motion is denied.
3. Sun’s Motion to Quash (filed 3/6/2023)
Legal Standard
“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).)
“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.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [quotation marks and citation omitted].)
Discussion
Sun moves the court for an order quashing service of the summons and FAC on the basis that they were not properly served.
Code of Civil Procedure § 415.30 governs the requirements for service by mail and acknowledgment of receipt and requires Plaintiff to serve a copy of the summons and complaint by mail “to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code Civ. Proc., § 415.30, subd. (a).) Subdivision (c) provides that “[s]ervice of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.”
Sun’s counsel Jacob S. Rosenberg (“Rosenberg”) represents, and/or the accompanying exhibits reflect, as follows: On October 25, 2022, Plaintiff filed a proof of service, which reflected that Sun had been served via mail and acknowledgment of receipt of service on September 29, 2022. (Rosenberg Decl., ¶ 4, Exh. A.)
Plaintiff’s opposition is not properly translated from Mandarin Chinese into English. Further, the there is no indication from the papers that a written acknowledgment of receipt was executed and returned to Plaintiff. The court also notes that Plaintiff purported to effectuate service of the summons and FAC himself, in violation of Code of Civil Procedure § 414.10 [i.e., “[a] summons may be served by any person who is at least 18 years of age and not a party to the action”].
Plaintiff has not met his
burden “to prove the existence of jurisdiction by proving, inter alia,
the facts requisite to an effective service.” (Summers, supra, 140
Cal.App.4th at 413). The motion is granted.