Judge: Salvatore Sirna, Case: 23PSCV02943, Date: 2024-06-17 Tentative Ruling

Case Number: 23PSCV02943    Hearing Date: June 17, 2024    Dept: G

Defendant Shuai Gao’s Motion to Quash Service of Summons and Complaints

Respondent: Plaintiff Piper Wong

TENTATIVE RULING

Defendant Shuai Gao’s Motion to Quash Service of Summons and Complaints is GRANTED.

BACKGROUND

This is a premises liability action. In June 2022, Plaintiff Piper Wong fell out of a second story window at a home in Diamond Bar. Wong alleges the window was in a dangerous condition as it was accessible to children and had a broken screen.

On September 25, 2023, Wong, by and through guardian ad litem Jiamei Wang, filed a complaint against Defendants Shuai Gao, Liu Yang, and Does 1-50, alleging (1) negligence and (2) premises liability. On November 13, 2023, Wong’s process server served Yang with substitute service in Walnut.

On December 6, 2023, Wong amended the Complaint to replace Doe 1 with Defendant Gao Shuai Trust Gao Shuai Tr (Gao Shuai Trust).

On February 12, 2024, Wong’s process server served Gao and the Gao Shuai Trust with substitute service in Diamond Bar.

On March 19, 2024, Gao filed the present motion. A hearing on Gao’s motion it set for June 17, 2024, along with a case management conference and OSC Re: Default/Default Judgment as to Gao and the Gao Shuai Trust.

EVIDENTIARY OBJECTIONS

Gao’s evidentiary objection to Exhibit B in the declaration of Wong’s counsel is SUSTAINED.

ANALYSIS

Gao moves to quash Wong’s service of summons on the grounds that the service was improper. For the following reasons, the Court GRANTS Gao’s 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

In a proof of service of summons filed on February 14, 2024, Wong’s process server states Gao was served with substitute service through “Tenant, Yi Zhao” at 2684 Shady Ridge Lane in Diamond Bar. The proof of service lists the Diamond Bar address as Gao’s “usual mailing address” because Gao’s physical address is unknown. While Wong’s process server did not attach a declaration of due diligence to the proof of service itself, Wong provided a separate declaration by Taylor Scarcella who was hired to locate and serve Gao. (Scarcella Decl., p. 1:27-2:4.) Scarcella states investigators located multiple addresses for Gao in California, Washington, and Canada. (Scarcella Decl., p. 2:6-7.) After investigating the address in Washington, they determined Gao owned the Diamond Bar address and may be residing in Canada. (Scarcella Decl., p. 2:15-18.) They also spoke to Yi Zhao, a tenant at the Diamond Bar address, who confirmed that Gao did not live at the Diamond Bar address. (Scarcella Decl., p. 2:25-3:4.)

In moving to quash the service of summons, Gao argues service of a tenant at the Diamond Bar address was improper because the address was not Gao’s residence, place of business, or usual mailing address. (Motion, p. 7:3-17.) Gao also provides a declaration to support this contention and claims to be a resident of Canada. (Gao Decl., ¶ 4.) In opposition, Wong argues Diamond Bar address was listed as the mailing address for the Gao Shuai Trust. (Opp., p. 5:19-25.) But Wong failed to provide any admissible evidence in support of this contention. Furthermore, even if the Diamond Bar address could be treated as Gao’s mailing address or usual place of business, substitute service is only allowed “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” (Code Civ. Proc., § 415.20, subd. (b).)

Here, despite acknowledging investigators located an address for Gao in Canada and that Gao “may also be residing in Canada,” Gao’s process server does not describe any attempt to personally serve Gao at Gao’s address in Canada before proceeding with substitute service at the Diamond Bar address. (Scarcella Decl., p. 2:7-18.) Thus, because Wong’s process server failed to attempt personal service on Gao with reasonable diligence, their substitute service of Gao at the Diamond Bar address was improper. While Wong also requests a continuance of the present motion in order for Wong’s process server to attempt service on Gao in Canada, such service or attempts at service will not retroactively cure the defective service at issue in the present motion.

Accordingly, Gao’s motion is GRANTED.

CONCLUSION

Based on the foregoing, Gao’s motion to quash Wong’s service of summons is GRANTED.