Judge: Yolanda Orozco, Case: 22STCV36816, Date: 2023-03-14 Tentative Ruling
Case Number: 22STCV36816 Hearing Date: March 14, 2023 Dept: 31
MOTION TO QUASH SERVICE OF SUMMONS
TENTATIVE RULING
Defendants’ Motion to Quash
Service of Summons is GRANTED.
Background
On November 22, 2022, Plaintiff Joanne Pak filed a
Complaint against Defendants Jennifer O. Oh and Younhee Cho for:
1)
Financial Elder Abuse;
2)
Breach of Contract;
and
3)
Common Count.
On December 21, 2022, special appearing Defendants filed
this Motion to Quash Service of Summons set to be heard on February 7, 2023.
On January 03, 2023, Plaintiff filed a declaration
requesting an extension because she had a hospital appointment on February 7,
2022 [sic] and needed more time to organize her case.
On February 6, 2023, the hearing was continued to March 14,
2023. (Min. Or. 02/06/23.)
No opposition nor reply has been filed.
The hearing on the motion is now before the Court.
Legal Standard
A defendant . . . 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).) A court lacks jurisdiction over a
party if there has not been proper service of process. (See Ruttenberg v.
Ruttenberg (1997) 53 Cal.App.4th 801, 808.)¿¿¿
Compliance with the statutory procedures for service of
process is essential to establish personal jurisdiction. (See Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service
creates a rebuttable presumption that the service was proper” but only if it
“complies with the statutory requirements regarding such proofs.” (Id.
at 1441-1442.)
¿¿
“When a motion to quash is properly brought, the burden of
proof is placed upon the plaintiff to establish the facts of jurisdiction by a
preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007)
148 Cal.App.4th 556, 568.)¿
Discussion
Defendant Jennifer Oh asserts that she was sick with the flu on December 7, 2022, and resting at her home when she was purportedly personally served by a person named Young Jun at 7:45 p.m. Defendant Oh asserts that on the date she was purportedly served, never heard any bell ringing, knocking on the door, or having someone hand documents to her. (Oh Decl. ¶¶ 2, 3.)
Younhee Cho asserts she could not have been served by substitute service because she was not living with Jennifer Oh on December 7, 2022, and has been living in Korea since 2013. (Cho Decl. ¶ 2.) Defendant Cho also declares that Oh’s address is not her usual mailing address. (Id. ¶ 3.) Therefore, Defendant Cho was not served at her dwelling house, usual place of abode, or usual mailing address as required by Code of Civil Procedure section 415.20(b).
Defendants also argue that the process server’s proof of service is contradictory because, under penalty of perjury, s/he states that they are “not a registered process server” on the proof of service for Defendant Oh, yet in the declaration of diligence for Defendant Cho, the process server states: “I am authorized to serve legal process in the State of California.” (See Proofs of Service filed 12/08/22.)
The Court notes that in both Service of Process filed for Defendants, the process server, Young Jun, states that they are “not a registered California process server.” “Evidence Code section 647 provides that a registered process server's declaration of service establishes a presumption that the facts stated in the declaration are true.” (Rodriguez v. Cho¿(2015) 236 Cal.App.4th 742, referencing American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390.)
Since the process server, Young Jun, is not a registered process server, the declaration that he/she personally served Defendant Oh does not rebut Defendant Oh’s declaration under penalty of perjury that she was never personally served. In addition, Plaintiff has failed to present evidence that Oh’s address is her residence or the usual mailing address of Defendant Cho.
The Plaintiff has failed to oppose the motion and produce evidence to show that service was proper. The Defendants’ Motion is GRANTED.
Conclusion
Defendants’ Motion to Quash
Service of Summons is GRANTED.