Judge: Robert B. Broadbelt, Case: 20STCV23621, Date: 2023-01-27 Tentative Ruling

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Case Number: 20STCV23621    Hearing Date: January 27, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants James Chow and Li Lai Hsia

RESPONDING PARTIES:    Plaintiffs Nicolitsa Pitsos, Georgios Pitsos, Stavroula Pitsos, a minor by and through her Guardian ad Litem Nicolitsa Pitsos, and Demetrios Pitsos, a minor by and through his Guardian ad Litem Nicolitsa Pitsos

Motion to Quash Service of Summons

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court rules on specially appearing defendants’ evidentiary objections, filed on January 19, 2023, as follows:

Objection Nos. 1-2, 4, 8-9, 16, and 26-27 are sustained.

Objection Nos. 3, 5-7, 10, 12, 14-15, 17-21, 24-25, and 28-32 are overruled.

Objection No. 11 is sustained as to the statement “Pursuant to the lease agreement between Defendants and Plaintiffs Defendants agreed to accept service of notices at their private mailbox ‘PO Box 636, La Canada, CA 81012.’”

Objection No. 13 is sustained as to the statement “Defendants received the Summons and Complaint, and tendered the lawsuit to their insurance company, Safeco Insurance, three days later, on or about August 17, 2020.”

Objection No. 22 is sustained as to the statement “where, pursuant to the lease agreement, Defendants agreed to accept service.”

Objection No. 23 is sustained as to the statement “a mailbox maintained by Defendants to receive all mail and notices, including communication and correspondence from the California DMV related to their California Drivers’ licenses, insurance, property taxes, etc.”

DISCUSSION

Plaintiffs Nicolitsa Pitsos, Georgios Pitsos, Stavroula Pitsos, a minor by and through her Guardian ad Litem Nicolitsa Pitsos, and Demetrios Pitsos, a minor by and through his Guardian ad Litem Nicolitsa Pitsos (“Plaintiffs”) filed this breach of warranty of habitability action on June 22, 2020, against defendants Rosa Y. Jou, James Chow, and Li Lai Hsia.

Specially appearing defendants James Chow (“Chow”) and Li Lai Hsia (“Hsia”) (collectively, “Defendants”) move the court for an order quashing the service of summons by Plaintiffs on the ground that they have not been properly served.

A defendant may 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.  (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.)  

Plaintiffs have submitted two proofs of service as to each defendant, reflecting service on May 3, 2022, and May 4, 2022.  First, Plaintiffs have submitted proofs of service stating that defendant Hsia was served (1) on May 3, 2022, at 1:00 p.m., by leaving the documents with Celine Guo, who was authorized to accept service and signed for service at 556 Las Tunas Drive #101, Arcadia, California, and (2) on May 4, 2022, at 11:00 a.m., by leaving the documents with a “party at residence authorized to accept” them at 5842 Ocean Terrace Drive, Rancho Palos Verdes, California, and by mail.  Second, Plaintiffs have submitted proofs of service stating that defendant Chow was served (1) on May 3, 2022, by leaving the documents with Celine Guo, who was authorized to accept service and signed for service at 556 Las Tunas Drive #101, Arcadia, California, and (2) on May 4, 2022, by leaving the documents with a “party at residence authorized to accept” them at 5842 Ocean Terrace Dr., Rancho Palos Verdes, California, and by mail.  The court notes that the proofs of service were not signed by a registered process server and therefore do not establish a “presumption, affecting the burden of producing evidence, of the facts stated in the return[s]” pursuant to Evidence Code section 647.  (Proofs of Service filed May 3, 2022 and May 4, 2022, ¶¶ 7, subd. (e)(1); Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 [emphasis in original].)

The court finds that Defendants presented evidence sufficient to challenge the court’s personal jurisdiction on the ground of improper service of process.  (Summers, supra, 140 Cal.App.4th at p. 413.)

Defendants submit their declarations to establish that they were not properly served.  In their declarations, Defendants attest to the following: (1) 5842 Ocean Terrace Dr., Rancho Palos Verdes, California 90275 is not their dwelling house, usual place of abode, usual place of business, or usual mailing address; (2) they have not appointed or authorized anyone to accept service on their behalf at 5842 Ocean Terrace Dr., Rancho Palos Verdes, California 90275; (3) 556 Las Tunas Dr., # 101, Arcadia, California 91007 is not their dwelling house, usual place of abode, usual place of business, or usual mailing address; (4) they have never resided, done business, or received mail at 556 Las Tunas Dr., # 101, Arcadia, California 91007; (5) they do not know anybody named Celine Guo, and never appointed or authorized Celine Guo to accept service of process on their behalf; (6) they live in Taiwan; and (7) they have not received any documents from Plaintiffs in this action, including the summons and complaint.  (Chow Decl., ¶¶ 3-7; Hsia Decl., ¶¶ 3-7.)

The court finds that Plaintiffs have not met their burden to prove the existence of jurisdiction by proving the facts requisite to effective service, and therefore grants Defendants’ motion.  (Summers, supra, 140 Cal.App.4th at p. 413.)

1.     Personal Service

The court finds that Plaintiffs have not established that Defendants were personally served with the summons and complaint.  A defendant may be personally served if the complaint and summons were personally delivered to the defendant, or if a copy of the summons and complaint are delivered to an agent authorized to accept service on behalf of that defendant.  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Plaintiffs do not appear to dispute that the summons and complaint were not personally delivered to Defendants.  Instead, Plaintiffs contend that they have properly served various individuals who are authorized to accept service on behalf of Defendants.

First, the May 3, 2022 proofs of service state that Defendants were personally served by leaving the summons and complaint with “Celine Guo, [who was] authorized to accept service and signed for service….”  (May 3, 2022, POS-010s as to Hsia and Chow, ¶ 3, subd. (b).)  Although Plaintiffs assert that “[a]t no time did Ms. Guo deny that she was authorized to accept service for Defendants,” Plaintiffs have not presented any evidence establishing that Defendants authorized Celine Guo to accept service of summons on their behalf.  Similarly, the May 4, 2022 proofs of service state that Defendants were personally served by leaving the summons and complaint with a “party at residence authorized to accept” them.  (May 4, 2022 POS-010s as to Hsia and Chow, ¶¶ 3, subd. (b), 5, subd. (a).)  However, the May 4, 2022 proofs of service do not identify the person served, and therefore do not establish that Defendants were personally served through an agent authorized to accept service of summons on their behalf.

Second, Plaintiffs contend that service was completed on May 3, 2022, because the Las Tunas address is the business address of defendant Jou, who Plaintiffs assert is Defendants’ agent.  However, Plaintiffs do not present evidence establishing that Jou was authorized by Defendants to accept service of summons on their behalf.  

Third, Plaintiffs argue that they properly served Defendants’ insurance carrier as their agent.  To support this argument, Plaintiffs introduce a letter to Chow from Safeco Insurance, dated August 27, 2020.  (Rand-Lewis Decl., Exs. C, E.)  However, this letter does not state that Defendants authorized Safeco to accept service of any summons and complaint on their behalf, and therefore does not establish that Safeco is an agent of Defendants that is authorized to accept service of summons.

The court therefore finds that Plaintiffs have failed to meet their burden of showing that they served Defendants by delivering a copy of the summons and complaint to an agent authorized by Defendants to accept service of summons on their behalf.

2.     Substitute Service

The court finds that Plaintiffs have not established that Defendants were served by substitute service.  “Substitute service on an individual is accomplished 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 …, 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.’”  (American Express Centurion Bank, supra, 199 Cal.App.4th at p. 389; Code Civ. Proc., § 415.20, subd. (b).)

First, the May 4, 2022 proofs of service state that Defendants were served with the summons and complaint at 5842 Ocean Terrace Dr., Ranchos Palos Verdes, California by leaving the documents with a “party of residence authorized to accept” them.  Plaintiffs argue that Defendants do reside at this address, and have submitted a copy of a background check conducted by Plaintiffs’ counsel in support of this proposition.  The background check indicates that Defendants are associated with 5842 Ocean Terrace Dr, # D, Ranchos Palos Verdes, California.  (Rand-Lewis Decl., ¶ 21; Rand-Lewis Decl., Ex. D.)  However, this evidence does not establish that this address constitutes Defendants’ “dwelling house, usual place or abode, usual place of business, or usual mailing address….”  (Code Civ. Proc., § 415.20, subd. (b).) 

Moreover, the court notes that even if this evidence did establish that the Ocean Terrace address was Defendants’ dwelling house or usual place of abode, business, or mailing address, the proofs of service do not reflect that service was effected at the complete address.  The background check associates Defendants with the address “5842 Ocean Terrace Drive # D,” but the May 4, 2022 proofs of service list the addresses where service occurred to be “5842 Ocean Terrace Dr.”  (Rand-Lewis Decl., Ex. D [emphasis added]; May 4, 2022 POS-010 as to Hsia and Chow, ¶ 4.)

Second, the court finds that Plaintiffs have not established that they properly served Defendants by mailing a copy of the summons and complaint to a P.O. box.  The May 4, 2022 proofs of service state that Defendants were served “[p]ursuant to the notice provision in the parties lease agreement” at “P.O. Box 626 La Canada CA 91012….”  (May 4, 2022 POS-010s as to Hsia and Chow, ¶ 5, subd. (d).)  Plaintiffs contend that the parties’ lease agreement establishes that Defendants have agreed to accept service at this P.O. box.  The court disagrees.  While the lease agreement does provide that “[n]otices may be served” to PO Box 626, La Canada, California, the lease does not state that Defendants have agreed to accept service of a summons and complaint at that address.  (Rand-Lewis Decl., Ex. A, ¶ 26 [emphasis added].)  The court further finds that Plaintiffs have not met their burden of showing that they have effected service in compliance with Code of Civil Procedures section 415.20, subdivision (c), because Plaintiffs have not presented evidence establishing that PO Box 626 is a “private mailbox through a commercial mail receiving agency….”  (Code Civ. Proc., § 415.20, subd. (c).)

3.     Conclusion

The court finds that Plaintiffs have not met their burden to show “the existence of jurisdiction” by proving that Defendants were properly served with the summons and complaint.  (Summers, supra, 140 Cal.App.4th at p. 413.)

The court denies Plaintiffs’ request that the court order Defendants to provide their current residence and business addresses.

ORDER

The court grants specially appearing defendants James Chow and Li Lai Hsia’s motion to quash service of summons.

The court orders that the service of summons on specially appearing defendants James Chow and Li Lai Hsia is quashed.

The court orders specially appearing defendants James Chow and Li Lai Hsia to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 27, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court