Judge: Salvatore Sirna, Case: 23PSCV00100, Date: 2023-04-20 Tentative Ruling

Case Number: 23PSCV00100    Hearing Date: April 20, 2023    Dept: G

Defendants Gonde He and Manyl Shen’s Motion to Quash Service of Summons

Respondent: Plaintiff Tai Ku

TENTATIVE RULING

Defendants Gonde He and Manyl Shen’s Motion to Quash Service of Summons is GRANTED.

BACKGROUND

This action arises from a landlord-tenant dispute. In February 2022, Plaintiff Tai Ku and Plaintiff’s family were tenants at a property in Rowland Heights. Plaintiff alleges Defendants Gonde He (He) and Manyl Shen (Shen) attempted a self-help eviction of Plaintiff and Plaintiff’s family by shutting off Plaintiff’s utilities, locking Plaintiff out of the Rowland Heights property, and moving Plaintiff’s personal property to the Rowland Heights property’s backyard where it was exposed to the elements.

On January 12, 2023, Plaintiff filed a complaint against Defendants, alleging (1) forcible entry and detainer, (2) assault, (3) false imprisonment, (4) conversion, (5) trespass, and (6) intentional infliction of emotional distress. On February 1, Plaintiff’s counsel personally served Defendants at the Rowland Heights property.

On February 14, 2023, Defendants filed the present motion. A hearing on the motion is set for April 20 and a case management conference is set for June 12.

ANALYSIS

Defendants move to quash Plaintiff’s service of summons on the grounds that the service was improper. For the following reasons, the court GRANTS Defendants’ motion.

Legal Standard

Pursuant to Code of Civil Procedure section 418.10, “[a] defendant, on or before the last day of [their] 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 [them].” (Code Civ. Proc., § 418.10, subd. (a)(1).) “When a defendant argues that service of summons did not bring [them] 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.) The filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration complies with the statutory requirements regarding such proofs.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163 [internal quotations omitted].)

Discussion

Plaintiff’s counsel first attempted to personally serve Defendants at the Rowland Heights property on January 19, 2023, but did not receive an answer at the door. (Lin Decl., ¶ 1.) On February 1, Plaintiff’s counsel described the personal service of Defendants as follows:

“On February 1, 2023, I decided to make another attempt to confirm if the Defendants were evading service or not. I went to the [Rowland Heights property] around 10:00 pm, and again, both vehicles were present, with one parked in the driveway and the other parked on the curbside in front of the [Rowland Heights property]. I knocked on the door for 5 minutes, and an Asian male opened the door. I immediately said ‘hi,’ but the Asian male stared at me for 5 seconds and then turned back and closed the door. Initially, I thought he was going to get changed and come back out, but after waiting for another 10 minutes, it became clear that he was not coming out. I then yelled at the property ‘these are court papers’ and threw the papers into the gate before leaving.” (Lin Decl., ¶ 2.) 

The court finds this is insufficient to establish Defendants were personally served as Plaintiff’s proofs of service claim. Based on the representations of Plaintiff’s counsel, counsel merely said “hi” and did not attempt to obtain the identity of the Asian male. Furthermore, even if this attempt had been sufficient to personally serve that individual, counsel’s declaration does not describe serving the other defendant. Thus, the declaration of Plaintiff’s counsel establishes neither Defendant was personally served.

Although Defendants made a special appearance in this action and Plaintiff suggests they had actual notice, actual notice cannot cure defective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 415; see also Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 [“A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.”].)

Accordingly, the court GRANTS Defendants’ motion.

CONCLUSION

Based on the foregoing, Defendants’ motion to quash service is GRANTED.