Judge: William A. Crowfoot, Case: BC665635, Date: 2022-12-28 Tentative Ruling

Case Number: BC665635    Hearing Date: December 28, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 19, 2017, Plaintiff Esmaeil Khoubian (“Plaintiff”) filed this action against Defendant Hyun Kim (“Defendant”) for motor vehicle and general negligence arising out of a June 23, 2015, automobile versus pedestrian accident. 

On January 18, 2019, the Honorable Laura A. Seigle granted Defendant’s motion to quash service of summons.  Defendant argued that Plaintiff could not have personally served him on June 23, 2018, because he was living in Los Angeles for a fixed period of time as part of his duties for the Consulate of South Korea, but left Los Angeles in April 2016 and has not returned since then.  (See Further Declaration of Hyun Myung Kim ISO Motion to Quash filed on December 21, 2018, ¶¶ 2-3.) 

On June 13, 2022, Plaintiff filed another proof of service reflecting substituted service on “John Doe”, a doorman, at 309 5th Avenue #4B in New York, NY (the “New York Address”) on June 13, 2022.  The proof of service identifies the New York Address as Defendant’s home.  On September 12, 2022, Defendant filed this motion to quash service of summons on the grounds that he does not – and has not – lived at the New York Address. 

Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served.  (Code of Civ. Proc., § 415.10.)  If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leaving a copy of the summons and complaint at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of . . . a person apparently in charge . . . and by thereafter mailing a copy of the summons and complaint by first-class mail . . . to the person to be served at the place where a copy of the summons and complaint were left.”  (Code of Civ. Proc., § 415.20, subd. (b).) 

When a defendant moves to quash service of summons, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)  Plaintiff argues that Defendant was properly served at the New York Address because the address was reflected in a skip trace performed by USA Legal Network.  However, the process server’s declaration of diligence, which shows that a tenant and the doorman stated that “subject is unknown” and that “subject is not in the computer system.”  This belies any assertion that Defendant resides at the New York Address. 

In light of the foregoing, the motion to quash service of summons is GRANTED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.