Judge: Robert B. Broadbelt, Case: BC639413, Date: 2023-02-01 Tentative Ruling

Case Number: BC639413    Hearing Date: February 1, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Leon Yong Hong aka Yeon Yong Hong 

RESPONDING PARTY:       Plaintiff Neman Brothers & Associates, Inc.  

Motion to Quash Service and Judgment

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

EVIDENTIARY OBJECTIONS

The court sustains plaintiff Neman Brothers & Associates, Inc.’s evidentiary objections, made in its opposition, to Exhibits B and C attached to the moving papers.  (Opp., pp. 5:25-6:1 [“Plaintiff thus expressly objects to each of Hong’s Exhibits as inadmissible in this action”].)  The court overrules any objections to the affidavit of Leon Yong Hong, attached as Exhibit A to the motion.

DISCUSSION

Defendant Leon Yong Hong a/k/a Yeon Yong Hong (“Hong”) moves the court for an order, pursuant to Code of Civil Procedure section 418.10, quashing the service of summons and setting aside the judgment entered against him on the ground that plaintiff Neman Brothers & Associates, Inc. (“Plaintiff”) did not serve Hong with the summons and complaint in this action.

On January 18, 2017, Plaintiff filed a Proof of Service stating that Hong was personally served with the summons and complaint on January 2, 2017, at 7:00 p.m., at 1112 Fairview Avenue, La Canada, California 91011.  (Jan. 18, 2017 POS-010, ¶¶ 3-5; Tabibi Decl., Ex. 1.)  The Proof of Service is signed by a registered California process server, and therefore “‘establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return’” pursuant to Evidence Code section 647.  (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 [italics in original].)  Hong, as the party disputing service, must submit evidence sufficient to overcome the presumption of service.  (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.)  

Hong submits an affidavit, wherein he states the following: (1) he found the judgment lien on the relevant recording document when he tried to sell his house; (2) he never received the court documents; (3) although he lived at his son’s house at the address where service was effected (i.e., 1112 Fairview Avenue, La Canada, California 91011), his son sold his house and Hong moved into his current apartment three years before the date of service; and therefore (4) “[i]t is total nonsense for the server to have physically served [Hong] the documents at the address, 1112 Fairview Avenue, La Canada, CA 91011.”  (Mot, Ex. A, Hong Decl.) 

The court finds that Hong has not met his burden to produce competent evidence sufficient to rebut the presumption of the facts stated in the Proof of Service.  The only admissible evidence submitted in support of Hong’s motion consists of his affidavit, which is insufficient to establish that Hong was not served with the summons and complaint.  First, although Hong states that his son sold the property located at 1112 Fairview Avenue, Hong does not state that he was not at that address on the date of service or establish that he was elsewhere on the date and time of service.  Second, Hong does not set forth specific facts rebutting the assertion that he was personally served with the summons and complaint.  The court finds that Hong’s general statement that he never received the court documents is insufficient to rebut the presumption of the facts establishing service by the registered process server.  (Mot., Ex. A, Hong Decl.; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 751 [the court is “not required to accept this self-serving evidence contradicting the process server’s declaration”].)  Finally, the court notes that it has sustained Plaintiff’s objections to the exhibits submitted by Hong.  Thus, the court has not been presented with competent evidence sufficient to support Hong’s assertions or to otherwise establish that he was not personally served on January 2, 2017. 

Upon consideration of the evidence and argument presented by the parties, the court finds that Hong has not met his burden to present evidence sufficient to rebut the presumption of service of the summons and complaint in this action and therefore denies his motion.

ORDER

            The court denies defendant Leon Yong Hong aka Yeon Yong Hong’s motion to quash service and judgment.

The court orders plaintiff Neman Brothers & Associates, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 1, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court