Judge: Robert B. Broadbelt, Case: 20STCV23621, Date: 2023-09-05 Tentative Ruling

Case Number: 20STCV23621    Hearing Date: October 2, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Specially appearing defendant James Tseng, on behalf of himself and the Tseng and Jou Family Trust        

RESPONDING PARTIES:    Plaintiffs Nicolitsa Pitsos, Georgios Pitsos, Stavroula Pitsos, and Demetrios 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 sustains plaintiffs Nicolitsa Pitsos, Georgios Pitsos, and Stavroula Pitsos and Demetrios Pitsos, by and through their guardian ad litem Nicolitsa Pitsos’s evidentiary objections to the declaration of James Tseng.  (Code Civ. Proc., § 2015.5.)

The court rules on specially appearing defendant James Tseng’s evidentiary objections as follows:

The court overrules Objections Nos. 1-3, 7, and 11.

The court sustains Objections Nos. 4-6, 8-10, and 12-13.

DISCUSSION

Specially appearing defendant James Tseng, on behalf of himself and the Tseng and Jou Family Trust[1] (“Defendant”) moves the court for an order quashing service of summons on the ground that plaintiffs Nicolitsa Pitsos, Georgios Pitsos, and Stavroula Pitsos and Demetrios Pitsos, by and through their guardian ad litem Nicolitsa Pitsos (“Plaintiffs”) did not properly serve Defendant with the summons and complaint in this action.

“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).)  “When a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’”  (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [the burden is on the plaintiff “to prove the existence of jurisdiction”] [internal quotations omitted].)  

On August 24, 2023, Plaintiffs filed two proofs of service with the court.  The first proof of service states that James Tseng was personally served on March 3, 2023, “by personal service.”  (POS-010 as to James Tseng, ¶¶ 3, 5.)  However, the proof of service also states that James Tseng was “confirmed at home, [and] refused to open [the] door to accept documents[.]”  (Id., ¶ 3, subd. (a).)  This proof of service was not signed by a registered California process server.   (Id., ¶ 7, subd. (e)(1).)  The second proof of service states that the Tseng and Jou Family Trust was personally served at the same time and at the same address that James Tseng was served.  (POS-010 as to Tseng and Jou Family Trust, ¶¶ 3-5.)  It further states that James Tseng was served on behalf of the trust as trustee and “as authorized agent to accept service of process (confirmed at home, refused to open door to accept documents)[.]”  (Id., ¶ 3, subd. (b).)  This proof of service was not signed by a registered California process server.   (Id., ¶ 7, subd. (e)(1).)

First, the court finds that, because the proofs of service were not signed by a registered process server, there is no presumption affecting the burden of producing evidence of the facts stated in those proofs of service.  (Evid. Code, § 647; American Express Centurion Bank, supra, 199 Cal.App.4th at p. 390 [when statutory presumption applied, the “defendant was thus required to produce evidence that he was not served”].)

Second, the court finds that Plaintiffs have not met their burden to prove that they properly served Defendant.  (Summers, supra, 140 Cal.App.4th at p. 413.)

Plaintiffs have attached copies of the proofs of service to their opposition papers, contending that they personally served Defendant as stated therein.  (Rand-Lewis Decl., Exs. A-B.)  However, the court finds that the proofs of service do not sufficiently show that Defendant was personally served, on behalf of Defendant as an individual and on behalf of the Tseng and Jou Family Trust, on March 3, 2023.

“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.)  “If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been ‘personally served.’”  (American Express Centurion Bank, supra, 199 Cal.App.4th at p. 389.)

Here, although the proofs of service state that Defendant was served “by personal service[,]” the other facts asserted therein establish that the summons and complaint were not “handed to” or personally delivered to Defendant.  (POS-010 as to James Tseng, ¶ 3, subd. (a); POS-010 as to Tseng and Jou Family Trust, ¶ 3, subd. (b); American Express Centurion Bank, supra, 199 Cal.App.4th at p. 389.)  Specifically, the proofs of service state that Defendant did not answer the door.  Therefore the process server could not have “personally delivered to, i.e., handed to,” Defendant the summons and complaint.  (Ibid.)  Thus, the court finds that, on their face, the proofs of service are insufficient to show that Plaintiffs served Defendant with the summons and complaint by personal service on March 3, 2023. 

Plaintiffs also argue that service was proper since Defendant refused to accept service of process.  (Opp., p. 4:11-13; Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 259-260.)  However, the court finds that Plaintiffs have not submitted competent evidence showing that Defendant was notified that he was being served with the summons and complaint in this action and evaded service. 

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

ORDER

The court grants specially appearing defendant James Tseng’s motion to quash.

The court orders that the service of summonses on (1) specially appearing defendant James Tseng, and (2) specially appearing defendant James Tseng, on behalf of the Tseng and Jou Family Trust, are quashed.

The court orders specially appearing defendant James Tseng to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 2, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court