Judge Stephen Morgan, Case 22AVCV00036 2023-05-09 Tentative Ruling

This is a motor vehicle – personal injury action. Plaintiff Zhen Feng (“Feng”) alleges that on January 12, 2020, along SR-39 (San Gabriel Canyon Road) 2.8 miles north of North Fork Bridge in Valyermo, CA 93563, Defendants Wenchang Wu (“Wu”), Zinui Xiang (“Xiang”), Yanwei Ye (“Yanwei[1]”), Hui Zhang (“Zhang”), Xiaotong Ye (“Xiaotong”), and Speedinghorse (collectively “Defendants”) took part in a street race with a Ferrari. Plaintiff presents that he was a passenger in the Ferrari, but did not give consent to the illegal race. Plaintiff further presents that the vehicle that Defendants were in was speeding and caused a collision with the Ferrari and another third vehicle as Defendants’ vehicle entered the lane of oncoming traffic. Plaintiff alleges that the collision caused severe injuries and Defendants fled the scene.

On January 11, 2022, Plaintiff filed their Complaint against Defendants alleging two causes of action for: (1) Motor Vehicle and (2) General Negligence.

On July 07, 2022, Plaintiff filed their First Amended Complaint (“FAC”) alleging the same two causes of action.

On February 08, 2023, Xiang filed this instant Motion to Quash Service of Summons (“Motion to Quash”).

On February 10, 2023, Xiang’s Ex Parte Application to Specially Set the Hearing on Its Motion to Quash Or, alternatively for the Trial Date to Be Continued to Accommodate the Reserved Hearing Date of April 3, 2023 (the “Ex Parte Application”) was heard by the Court. The Ex Parte Application was granted. The Final Status Conference scheduled for 03/08/2023 and Non-Jury Trial scheduled for 03/17/2023 were advanced and vacated, the hearing on the Motion to Quash scheduled for 04/04/2023 is advanced to this date and continued to 03/28/23 at 08:30 AM in Department A14 at Michael Antonovich Antelope Valley Courthouse, and a Case Management Conference was scheduled for 03/28/2023 at 08:30 AM in Department A14 at Michael Antonovich Antelope Valley Courthouse.

On March 15, 2023, Xiang filed three supplemental declarations in support of the Motion to Quash.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for March 28, 2023. Accordingly, an Opposition was due by March 15, 2023.

On March 28, 2023, a hearing on the matter was held. The Court posted a tentative, denying Xiang’s Motion to Quash. The Court continued the motion to May 09, 2023 and invited Xiang to file a copy of his UCIS travel history and any other supporting documents. The Court imposed a deadline of May 01, 2023 for any supplemental declarations or evidence from both parties.

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.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.

Chapter 1.5 provides the Court with the discretionary ability to dismiss for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. (Cal. Code Civ. Proc. § 583.410.)

Application – Xiang presents that he left the state of California on January 28, 2020 and has not returned since. (Xiang Decl., ¶ 3.) Further, Jessica Chen (“Ms. Chen”) and Zhiwei “Wayne” Chen (“Mr. Chen”) currently reside at 115 Dewey Ave Apt. F in San Gabriel CA. (Elly Decl., ¶¶3,5,8; Fazel ¶4). Xiang presents that Ms. Chen contacted the attorney on the service documents to advise them that neither her husband (Mr. Chen) not herself know or have any affiliation with anyone by the name of Ziniu Xiang. (Elly Decl., ¶¶6-7.) Xiang states that he never authorized anyone at the address listed on Plaintiff’s Proof of Service. As such, Xiang argues that he was never served with the Summons and Complaint.

Xiang’s Supplemental Brief shows that he departed from Los Angeles International Airport on January 29, 2020 and has not returned to the United States. (Exh. A-1.) Xiang has also provided his visa, showing that it expired on June 05, 2021. (Exh. A-2.)

The Court had taken issue with Xiang’s failure to provide the original Chinese document from his employer. Xiang has now submitted the original document with Darwin Capital, LLC’s letterhead. (Exh. A-3.)

Xiang further provides the declarations and other evidence that was previously submitted with the original motion.

Based on the evidence provided, Xiang could not have been served through personal service on November 09, 2022 at 8:30 am as he was not in the United States.

The Court notes that the filed proof of service was done by a registered California process server, creating a presumption that service is correct. (Cal. Evid. Code § 647.) The evidence presented by Xiang is sufficient to overcome this presumption.

Though this motion is named a Motion to Quash, Xiang moves to be dismissed as he is domiciled in China, has no physical presence in the State of California since he moved to China, and has no contacts within the State of California that would warrant this court exercising personal jurisdiction over him in this lawsuit.

The California Appellate Courts have issued holdings related to such a situation:

Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction. (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983) 146 Cal.App.3d 440, 444 [194 Cal. Rptr. 240]; Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1356 [228 Cal. Rptr. 807]; Edmunds v. Superior Court (1994) 24 Cal.App.4th 221, 228 [29 Cal. Rptr. 2d 281] (Edmunds).) The plaintiff must present facts “‘demonstrating that the conduct of defendants related to the pleaded causes [of action] is such as to constitute constitutionally cognizable “minimum contacts.” [Citation.]’” (Edmunds, supra, at p. 228.)

Evidence of the jurisdictional facts or their absence may be in the form of declarations. (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, supra, 146 Cal.App.3d at p. 444.) Where there is a conflict in the declarations, resolution of the conflict by the trial court will not be disturbed on appeal if the determination is supported by substantial evidence. (Ibid.; Edmunds, supra, 24 Cal.App.4th at p. 228.) However, where the evidence of jurisdictional facts is not conflicting, the question of whether a defendant is subject to personal jurisdiction is one of law. (Edmunds, supra, at p. 228.)

Plaintiff has not opposed this motion. In doing so, Plaintiff has failed to meet their burden.

Xiang’s cited legal standard, however, does not provide the Court with the ability to dismiss due to lack of personal jurisdiction. Specifically, Cornelison v. Chaney (1976) 16 Cal.3d 143 (“Corenlison”) states: “Plaintiff appeals, contending that the activities of defendant furnish sufficient basis for jurisdiction to attach in California and that the trial court erred in dismissing the action. We agree.” (Corenlison, supra, 16 Cal.3d 143 at 146.) The Corenlison Court then discuss dismissal of the action on the grounds of forum non conveniens. (Id. at 150-52.)

The legal standard is such that the Court may quash the service of the Summons, but not dismiss Xiang. As Xiang presents, “[f]ailure to establish either personal jurisdiction or proper service are two independent grounds for quashing service of the summons and complaint.” (Motion 6:19-20.)

Specially appearing Defendant Ziniu Xiang’s Motion to Quash Service of Summons is GRANTED.

[1] Defendants Yanwei Ye and Xiaotong Ye share the same surname. The Court addresses each individually by their first names for the purposes of clarity. No disrespect is meant.