Judge: Ralph C. Hofer, Case: 24NNCV04218, Date: 2025-01-03 Tentative Ruling
Case Number: 24NNCV04218 Hearing Date: January 3, 2025 Dept: D
TENTATIVE RULING
Calendar: 11
Date: 1/3/2025
Case No: 24 NNCV04218 Trial Date: None Set
Case Name: Lee, et al. v. Kim
MOTION TO QUASH SERVICE
MP: Defendant Chung Koo Kim
RP: Plaintiffs Sun Ha Lee and Young Min Byun
Type of Service: Substituted
Proof of service properly verified? Yes
FACTUAL BACKGROUND:
Plaintiffs Sun Ha Lee and Young Min Byun allege that in July of 2020, plaintiff entered into a written residential lease with defendant Chung Koo Kim, the owner of real property located on Ardara Place in La Canada Flintridge, to lease the subject property, and in August of 2023, the parties entered into a written extension of the lease.
Plaintiffs allege that since March of 2023, plaintiffs have repeatedly complained to defendant Kim about severe and dangerous mold problems inside the property, including the ceiling and walls, and repeatedly requested that Kim immediately clean up the mold problems so that plaintiffs as well as their minor children would not be exposed to harmful bacteria. Plaintiffs also allege that a landslide in the backyard has created a dangerous condition and safety concerns and has prevented plaintiffs and their children from enjoying the backyard. Plaintiffs allege they have repeatedly complained to defendant Kim about the dangerous condition and requested the defendant immediately repair the damaged areas. Plaintiffs allege that despite plaintiffs’ repeated requests, defendant has ignored plaintiffs’ requests to clean up the mold problems and repair the damaged areas in the backyard of the property. The complaint alleges that defendant’s failure to maintain the habitability of the property has adversely impacted the health and safety of plaintiffs and their children, and that the stress of living in a hazardous environment has caused and continues to cause plaintiffs to suffer immense stress, anxiety, depression, insomnia, and fearfulness.
ANALYSIS:
Defendant Chung Koo Kim seeks to quash service of the summons and complaint on defendant.
CCP § 418.10 permits a defendant, on or before the last day of his or her time to plead, to serve and file a notice of motion to quash service of summons “on the ground of lack of jurisdiction of the court over him or her.” § 418.10(a)(s 1).
With respect to a motion to quash for lack of jurisdiction, the burden is on plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Mihlon v. Superior Court (1985, 2nd Dist.) 169 Cal.App.3d 703, 710; Ziller Electronic Labs GmbH v. Superior Court (1988, 2nd Dist.) 206 Cal.App.3d 1222, 1232-1233.
Plaintiff must make this showing based on admissible evidence. Ziller, at 1233; see also Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.
Here, defendant argues that a cursory review of plaintiff’s proof of service reveals that the summons and complaint were given to Jennifer Kim, who is neither the defendant nor has any involvement in this matter. Defendant argues that this method of service is insufficient. Defendant also argues that defendant does not reside at the address where the erroneous substituted service was effectuated.
The proof of service on file with the court shows service by substituted service by a registered process server on Jennifer Kim, “Daughter,” with a description of that person, described as “Age: 18-24,” at the home of the party served by such substituted service, 3227 Altura Ave. Apt. 1 in La Crescenta. [POS, filed 09/25/2024].
Under CCP § 415.20(b)
“(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,… a summons may be served 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 other than a United States Postal Service post office box, 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 other than a United States Postal Service post office box, 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”
The proof of service appears to fully comply with this statute, as it is accompanied by a declaration of diligence, and shows follow-up mailing. The motion appears to concede that Jennifer Kim was in fact served with the summons and complaint and is defendant’s daughter. The argument that this person has no involvement in this case does not defeat service by substituted service. The statute requires that the documents be delivered “in the presence of a competent member of the household…at least 18 years of age.” There is no argument or evidence here that Jennifer Kim is not competent, or is not at least 18 years of age. There is no requirement in the statute that the person the documents are delivered in the presence of be involved in the case.
The motion also argues that service was improper as the address where service was made was not and is not defendant Kim’s usual place of business or his residence, but is the home of defendant’s daughter.
Defendant relies on the declaration of defendant’s daughter, Jennifer Kim, who concedes that service was made as represented, and states:
“5. My father does not reside at this address.
6. My father has not lived within the United States for the past five years, and currently resides in Korea.
7. My father has not conducted business from my home.
8. I have no involvement with the lawsuit served upon me.
9. I am not the appropriate person to be served with this lawsuit, as I have no legal connection to the matter at hand.”
[Kim Decl., paras. 5-9].
There is no declaration submitted by defendant Kim, which the court usually sees in matters disputing a service address.
In any case, plaintiffs in opposition argue that that the Lease itself provides no address for notices to be served on the landlord, and the address for the landlord listed is the subject property in La Canada Flintridge. [RFJN, Ex. A, Sections 32, 51].
Plaintiffs argue that on August 26, 2024, defendant Kim sent a Three-Day Notice to Pay Rent or Quit to plaintiffs, which provides:
“Person to Pay Chung Koo Kim
Address to Pay 3227 Altura Ave. Apt. 1 La Crescenta CA 91214.”
[RFJN, Ex. B].
Plaintiffs also indicate that on September 19, 2024 defendant Kim commenced an unlawful detainer against plaintiffs, and that the Three-Day Notice attached to the unlawful detainer complaint also specifies that defendant Kim is to be paid at the La Crescenta address where service was effected. [RFJN, Ex. C, Ex. 2].
Plaintiffs also indicate that defendant Kim must have actual notice of this lawsuit, as a representative of Farmers’ Insurance contacted counsel for plaintiffs as a representative for Farmers’ insured, Chung Koo Kim, and acknowledged receipt of the summons and complaint from its insured. [Myung Decl., para. 2].
The fact that defendant Kim has knowledge of the lawsuit is not relevant to the inquiry concerning whether the service by substituted service was proper under the statute relied upon.
However, the court has reviewed the Lease provision, which states that “Notices may be served at the following address, or at any other location subsequently designated.” [RFJN, Ex. A]. It also appears that on at least two separately prepared Three Day Notices to plaintiffs, defendant Kim directed that payment by made to the La Crescenta address. [RFJN, Exs. B, C]. One of those notices is attached to an unlawful detainer complaint, and evidently defendant is relying on the fact that payment was not made to that address in support of the unlawful detainer claim. [RFJN, Ex. C, Ex. 2].
Under the circumstances, it appears that defendant Kim has been conducting business from the subject address, and substituted service was properly made at the address defendant expressly designated. The court finds the showing submitted with the moving papers of questionable credibility, as there is no declaration of defendant submitted attesting that he does not reside at the subject address, or treat it as his usual mailing or business address, and no alternative residence address is identified or shown by credible evidence, such as a driver’s license. The evidence offered that defendant does not conduct business from the service address is from his daughter, without stating facts explaining how she is personally aware of that fact, and the testimony’s accuracy is called into question by the use of that address, more than once, as the legally required place for the delivery of rent.
The court finds the service was proper. The motion to quash is denied.
RULING:
Motion to Quash Service of Summons is DENIED.
Ten days to file and serve a response to the Complaint.
Request to Take Judicial Notice in Support of Opposition to Motion to Quash Service of Summons is GRANTED to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case.).
Objection to Declaration of Jennifer Kim Filed in Support of Motion to Quash Service of Summons is OVERRULED. The Court has considered plaintiffs’ arguments in the opposition in determining the weight to give to the testimony offered in the subject declaration.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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