Judge: Thomas Falls, Case: 21PSCV00033, Date: 2022-09-30 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 21PSCV00033    Hearing Date: September 30, 2022    Dept: R

Tentative Ruling

Motion Of Specially Appearing Defendant Chi Ian Ho To Quash Service Of Summons And Complaint For Lack Of Proper Service is Continued to allow for supplemental briefing.

Background

This case pertains to alleged unlawful marijuana cultivation. Plaintiff City of El Monte (“Plaintiff”) alleges the following against Defendants Chi Ian Ho (“Defendant Ho”) and Zhilin Han (collectively, “Defendants”): During the search of Defendants’ residence, police officers observed marijuana cultivation, but Defendants do not possess a municipal or state license required by law to engage in commercial marijuana activity.

On January 13, 2021, Plaintiff filed suit against Defendants for:

1.      Violation of El Monte Municipal Code (EMMC Chapters 5.18 and Ch. 1.19)

2.      Violation of Unfair Competition Law (Violation of Unfair Competition Law) and

3.      Violation of MAUCRSA (Business and Professions Code Section 26000 et seq.)

On February 24, 2022, Plaintiff filed a Proof of Service, indicating that Defendant Chi Ian Ho had been served by personal service on 02/18/2022 at 1:04 PM. The proof of service states that “[t]he individual accepted service with direct delivery. The individual appeared to be a black-haired Asian male contact 35-45 years of age, 5'4"-5'6" tall and weighing 140-160 lbs.”

On March 9, 2022, Plaintiff filed a Declaration of Non-Service as to Defendant Zhilin Han.[1] 

On March 21, 2022, Defendant Ho filed a motion to quash service of summons and complaint of Plaintiff.

On March 29, 2022, Plaintiff filed a Proof of Service of Summons, indicating that Defendant Chi Ian Ho had been served by personal service on 03/25/22 at 12:13 PM. The proof of service states that “[t]he individual accepted service with direct delivery. The individual appeared to be a black-haired Asian male contact 35-45 years of age, 5'4"-5'6" tall and weighing 140-160 lbs.”

On April 15, 2022, Plaintiff filed a Proof of Service of Summons, indicating that Defendant Chi Ian Ho had been served via personal service. The proof of service states that on March 25, 022 at 12:13 PM “[t]he individual accepted service with direct delivery. The individual appeared to be a black-haired Asian female contact 35-45 years of age, 5'6"-5'8" tall and weighing 140-160 lbs.”[2]

On April 25, 2022, Defendant Ho filed a ‘Motion Of Specially Appearing Defendant Chi Ian Ho To Quash Service Of Summons And Complaint For Lack Of Proper Service’ (“Motion”) as to the March 25, 2022 service.[3]

On August 30, 2022, Plaintiff filed a ‘Plaintiff City Of El Monte’s Opposition To Specially Appearing Defendant Chi Ian Ho’s Motion To Quash March 25, 2022 Service Of Summons And Complaint’ (“Opposition”).

On September 22, 2022, Defendant Ho filed her Reply.

Legal Standard

“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.” (Code Civ. Proc., § 418.10 subd., (a).)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4^th 1426.)

Evidentiary Objection

Defendant Ho’s objection the declaration of David Brown, the process server, is overruled as his conclusions are not without foundation, nor hearsay, nor lack personal knowledge, nor an improper legal opinion.

Discussion

Defendant Ho moves to quash service on the grounds that she was never personally served because of the following two reasons:

i.                    She was not at the property on the day of purported service

ii.                  Defendant Ho is a female, not a male as indicated in the proof of service. 

In Opposition, Plaintiff avers that the process server made a typographical error (writing male instead of female) and that upon discovery of such error, the process server corrected the error. Moreover, in support of its contention that the error was a mere typographical one, Plaintiff argues that “Defendant does not dispute the other six descriptors that the process server gave of the subject property and of the Defendant herself. Specifically, Defendant does not dispute that the address on the proof of service is her address or that the process server correctly stated her: (1) hair color; (2) race; (3) age; (4) height; and (5) weight.” (Opp. p. 2.) As such, Plaintiff argues that a typo and a barebones denial are insufficient to rebut the presumption created by the process server’s declaration.

A proof of service containing a declaration from a registered process server invokes a rebuttable presumption of valid service.[4] (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 (“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”).) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at p. 1428.)

The court turns to American Express, a case cited by both parties, as it is the most instructive case. In American Express, the proof of service stated that the process served “Robert V. Zara party in item 3.a., Asian, Male, 65 Years Old, Black Hair, Brown Eyes, 5 Feet 6 Inches, 160 Pounds” at “435 Rosewood Ave San Jose, CA 95117 . . . by personal service . . .  Sat., Jan. 30, 2010(2) at: 6:43PM.” (American Express, supra, 199 Cal.App.4th 383 at pp. 387-388.) The defendant filed a motion to quash by submitting a declaration stating that he was (i) not Asian, (ii) does not have black hair as he has “mostly graying hair, although colored light brown for the last 5 years, to disguise the gray”; (iii) no members of the household who fit that description live in the household, (iv) that he has lived alone as the sole member of his household for at least the last ten years, (v) that there were no other competent members of his household who could have competently received the complaint and summons, and (vi) he returned home at 8PM on January 31, 2010, therefore making personal service impossible. (Id.) The appellate court, concluding that the proof of service was false, did so based upon the following reasoning:

[T]he proof of service on its face indicates that the process server did not comply with the rules governing service. It shows personal service upon defendant himself and describes defendant as an Asian with black hair, a description that does not fit defendant. The proof of service was therefore untruthful. Alternatively, the proof of service does not show personal service upon defendant by leaving a copy with someone other than defendant together with some indication that such person was authorized to accept service on defendant's behalf. The proof of service therefore cannot be construed as attesting to authorized-agent personal service. In the absence of evidence from the process server, the uncontradicted evidence is that the process server did not personally serve defendant.

(Id. at p. 390) (italics added).

Here, at the outset, the court agrees with Plaintiff that Defendant Ho’s declaration does “not offer even a cursory explanation of where she allegedly was on the day in question, let alone a declaration from a corroborating witness or any documentary support. No receipt. No digital footprint. No itinerary. Nothing.” (Opp. p. 2.) However, the court does not find Defendant Ho’s conclusive declaration to be fatal to her motion because the crux of the issue is whether a person with different physical descriptions was served. Similar to American Express wherein the defendant provided evidence that he looked different than the description on the proof of service, here, Defendant Ho declares that she is no more than 5’4” tall and 120 pounds.[5] (Reply Chi Decl., ¶ 5). However, the proof of service states that Defendant Ho is 5’6” to 5’8” and 140 to 160 pounds. As such, while the process server need not have determined with precision the individual’s descriptors, a variance of two-to-four-inches in height and twenty-to-forty-pounds in weight is too stark of a difference to overlook. Furthermore, similar to American Express wherein there was no explanation for the false proof of service, here, the process server’s declaration conclusively states that “after the proof of service was executed and submitted, I became aware [of] the mistake” without providing an explanation of the reason(s) behind the sudden realization.[6] (Brown Decl., ¶7.)

Therefore, even if service of process statutes should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, here, there are serious doubts as to whether Defendant Ho was served. (See Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778 [wherein the court concluded that the service of process statutes should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant].)

Accordingly, as Plaintiff’s argument that the typographical error is not enough to negate the process server’s service is predicated upon the process server correctly identifying Defendant Ho’s other descriptors,” that argument is unavailing. (Opp. p. 8:16-19 [“Given that there is no dispute that Mr. Brown was at the right place and that he correctly identified all of Defendant’s other physical traits, the only conclusion to be gleaned is that the inaccurate designation of Defendant as a ‘male’ was a simple typo.”].)

Notwithstanding the foregoing, the court notes that Defendant Ho presented this evidence in her Reply, not the Motion.

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Consequently, generally regardless of the type of motion, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (Id. at p. 1538, quoting American Drug Stores v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Here, the court finds it unfair that Defendant Ho waited until her Reply brief to file the very evidence dispositive to this Motion. (Jay, supra, 218 Cal.App.4th at p. 1538 [Defendants' decision to wait until the reply briefs to bring forth any evidence at all, when the limited partners would have no opportunity to respond, was simply unfair.”]) (italics original). Had the evidence been submitted in the Motion, the court strongly believes Plaintiff would have made different arguments.

Therefore, to allow Plaintiff to adequately respond to the new evidence, the court continues the matter for supplemental briefing. 

Conclusion

Based thereon, the Motion is continued.