Judge: Steven A. Ellis, Case: 21STCV11988, Date: 2024-08-13 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 21STCV11988    Hearing Date: August 13, 2024    Dept: 29

Ubachukwu v. Home Owner’s Association
21STCV11988
Motion to Quash filed by Defendant Sean Chan Lee

Tentative

The motion is granted.

BACKGROUND

On March 29, 2021, Adanna Ubachukwu (“Plaintiff”) filed a complaint against Fadi Ragmab, R. Ragheb, Sean Chen Lee, Home Owner’s Association of 1638/1640 W. 227^th Street Community Association, Nationwide Property Management, and Does 1 through 100, asserting causes of action for negligence, premises liability, Intentional Tort – Battery, and Strict Liability, arising out of a dog bite incident occurring on April 4, 2019.

On May 3, 2024, default was entered against Fadi Ragmab and Sean Chen Lee.

On May 6, 2024, Sean Chan Lee (erroneously sued as Sean Chen Lee) (“Lee”) filed this motion to quash service of summons. Plaintiff filed an opposition on June 4, 2024.  Lee filed a reply on August 7.

The hearing was originally scheduled for July 11 and was continued by the Court.

While this motion was pending: (1) the default of Lee was set aside, based on the stipulation of the parties; and (2) Lee filed an answer on July 1.

LEGAL STANDARD

Proper service of a summons on each defendant is a constitutional and statutory requirement in all civil actions.  Without proper service (or, for example, consent or waiver), a court does not acquire jurisdiction over a defendant, and in general any judgment rendered against the defendant is void.  (E.g., Kremerman v. White (2021) 71 Cal.App.5th 358, 371; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1231.)

The Code of Civil Procedure provides for service on a defendant within the State of California by four basic methods: (1) personal service; (2) substitute service; (3) service by mail and acknowledgement of receipt; and (4) service by publication.  (Code Civ. Proc., §§ 415.10, 415.20, 415.30, 415.50.)

A defendant may challenge service through a motion to quash service of the summons filed under Code of Civil Procedure section 418.10, subdivision (a)(1). 

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.”  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also, e.g., Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)  Although the filing of a proof of service by a registered process server creates a rebuttable presumption that service was proper (see Evid. Code § 647), that presumption may be rebutted by contrary evidence submitted by a defendant. (See, e.g., Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941 n.6.)

Although a general appearance generally waives any alleged defect in service, the filing of a demurrer or answer concurrently with or after the filing of a motion to quash service does not constitute a general appearance.  (Code Civ. Proc., § 418.10, subd. (e)(1).)

DISCUSSION

Plaintiff filed with the Court on May 3, 2024, a proof of service of the summons and complaint on Lee.  According to the proof of service, Lee was served by substitute service at his “dwelling house or usual place of abode” on February 7, 2024.  The summons and complaint were delivered to an individual named Marshe Hotoro at 1640 W. 227th Street, #2, Torrance, California (the “Service Address”) and then later that same day mailed to Lee at the same address.  The proof of service is executed by Godwin Opara, who is not a registered process server. 

In support of his motion, Lee states that the Service Address is not now and has never been his residence.  (Lee Decl., ¶ 2.)  Since 2009, Lee states, he has lived at an address on Ascot Circle in Huntington Beach.  (Ibid.)  Lee also submits a declaration from Massiel Hurtado, who states that she has lived at the Service Address since January 2024, and Lee has not lived there during that time.  (Hurtado Decl., ¶¶ 2-3.)

Plaintiff presents no contrary evidence.  Indeed, Plaintiff apparently was aware of Lee’s residence on Ascot Circle in Huntington Beach but was unable to serve him there.  (Onyejekwe Decl., Exh. A.)  Plaintiff contends that Lee is attempting to evade service.

The Court has considered all of the evidence in the records and the arguments presented by both sides.  The Court finds that Lee did not, at the time of service, reside at the Service Address: it was not, in the words of the statute, Lee’s “dwelling house, usual place of abode, usual place of business, or usual mailing address.”  (Code Civ. Proc., § 415.20, subd. (b).)  Accordingly, service was not validly or properly served.

The motion to quash is granted. 

CONCLUSION 

The Court GRANTS Sean Chan Lee’s motion to quash service of summons.

The Judicial Assistant is directed to give notice.