Case Name: Nhu Le Nguyen v. Thang Manh Le
Case No.: 19CV346026

The matter arises from a now apparently ended romantic relationship between Pro Per Plaintiff Nhu Le Nguyen (“Plaintiff”) and Defendant Thang Manh Le (“Defendant”). Plaintiff’s original complaint was filed on April 15, 2019 and was—according to a proof of service containing hand-written corrections filed April 16, 2019—served on Defendant via personal service by an individual who was not a registered process server. It was quickly followed by the operative First Amended Complaint (“FAC”) which was filed on April 23, 2019 and—according to a proof of service filed on April 23, 2019—was served on Defendant via regular mail.

Currently before the Court is Defendant’s motion to quash service of summons on the ground of lack of personal jurisdiction due to improper service. (See Notice of Motion at p. 1:21-27.) Defendant does not deny receiving the FAC in the mail, but contends that this service was insufficient as there was never proper service of the original complaint because the purported personal service never occurred. Defendant also contends that the request for entry of default filed on May 29, 2019 was improper as there had been no proper service.

Proper service of a summons and complaint must be done in compliance with the Code of Civil Procedure (“CCP”). The CCP permits several different kinds of service. Among those relevant here, CCP §415.10 states that a summons may be served by personal delivery of a copy of the summons and complaint to the person to be served. The declaration of service must state the time and place where the summons and complaint were delivered to defendant. Service can also be accomplished via mail if the proper procedure is followed and the person to be served signs an acknowledgement of summons. (CCP §415.30.) Here, there is no evidence of any acknowledgement of service of summons signed by Defendant in relation to service of the FAC. Thus service of the FAC on Defendant by regular mail was only proper if Defendant had already been properly served with the original complaint via personal service.

Once a defendant files a motion to quash service, the burden is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence demonstrating the validity of the service. (Lebel v Mai (2012) 210 Cal.App.4th 1154, 1160.) “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 facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The plaintiff must demonstrate by a preponderance of the evidence that proper service of the summons and complaint was effectuated. (Boliah v. Superior Court (1999) 74 Cal.App.4th 984, 991.) The filing of a proof of service that complies with applicable statutory requirements by itself creates a rebuttable presumption that service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) However, the presumption only applies if statutory requirements were complied with. (Id. at p. 1441-1442.) A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evidence Code §647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

To rebut the presumption created by the filing of the proof of service of the original complaint Defendant has presented several declarations with his motion. The first is from Defendant Thang Le himself. He asserts that the statement in the proof of service for the original complaint that he was given, that he was personally served on April 26, 2019 at 2:02 p.m.at 125 Patterson Street, Apartment 126 in San Jose, California is false. “I was not served at that time or at any other time. On April 16, 2019 at 2:02 p.m., I was working at Hancock Medical, Inc., dba Beddr Sleep, 897 Independence Avenue, Mountain View California, where I run the QA team. In addition, while the proof of service indicates I was served at 125 Patterson Street, Apartment 126, San Jose California (see Exhibit A to Declaration of Gordon J. Finwall), my home address is 125 Patterson Street, Apartment 336, San Jose, California. I have no connection to Apartment 126 and have never been in that unit. I was also not personally served with the [FAC]. Rather, I received a copy of it in the mail.” (Defendant Decl. at ¶¶2-4, brackets added.)

The second declaration is from Defense Counsel Gordon Finwall. For the most part he describes his meet and confer efforts with Plaintiff and authenticates attached exhibits A-J. A copy of the proof of service for the purported personal service of the original complaint is attached as exhibit A. This is the proof of service given to Defendant and it does not contain the handwritten corrections present on the copy filed with the Court. Exhibit B is a copy of the FAC, exhibit C is a copy of the proof of service for the FAC, and exhibits D-J are copies of communications (letters and email) between Mr. Finwall and Plaintiff.

The third declaration is from Bryce Mariano, a non-party to this action. Mr. Marino states that he works with Defendant “at Hancock Medical, Inc. dba Beddr Sleep in Mountain View, California as the Product Manager. In this role I organize, prioritize and generally manage the various engineering projects that are being worked on. The Quality Assurance team, which [Defendant Le] heads, is intimately involved in the daily activity of the development team as he tests and verifies the new features or bug fixes that the engineering team marks as complete. Our team uses an online tool called JIRA to define, track and discuss the various units of work (referred to as issues). As Administrator of the JIRA tool, I get various email updates for most of the activities that a given user may be completing (creating issues, updating issues, commenting on issues, etc.). Attached hereto as Exhibit ‘A’ are true and correct copies of emails that show Mr. Le was working on April 16, 2019 in the afternoon at Beddr Sleep’s offices located at 897 Independence Avenue, Mountain View, California 94043. Note that in the ticket that was created by Mr. Le at 1:41 p.m. on April 16, 2016, Mr. Le mentions a conversation that the two of us had in person just before he created the issue. From my personal recollection and the evidence shown in these emails, I can confidently state that Mr. Le was working and in the offices of Beddr Sleep on the afternoon of April 16, 2019.” (Mariano Decl. at ¶¶2-4, brackets added.)

The fourth declaration is from Kirby Chiang, another non-party. Mr. Chiang states that he is “a founder and lead mechanical engineer at Hancock Medical, Inc., dba Beddr Sleep in Mountain View, California. I work closely with [Defendant Le], who runs our QA team, at our Mountain View offices located [at] Independence Avenue, Mountain View, California 94043. Mr. Le was at work at Beddr Sleep on April 16, 2019 all day until about 5:00 p.m.” (Chiang Decl. at ¶¶1-3, brackets added.)

These four declarations are sufficient to dispel the presumption of proper service created by the filed proof of service for the original complaint, purporting to show personal service on Defendant at his home at 12:02 p.m. on April 16, 2019. (See Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882 [when opposing party produces evidence casting doubt on the truth of the presumed fact, the other party is no longer aided by that presumption and “the presumption disappears, leaving it to the party in whose favor it initially worked to prove the fact in question.”])

With her opposition to the motion to quash Plaintiff has submitted a declaration from Ngoc Ta (sometimes referred to as “Ngoc + Ta”), the individual who signed the proof of service for the original complaint. Ngoc Ta states that he “was asked to serve the papers relating to the above lawsuit,” and that “[t]he papers were hand delivered to Defendant at his mailing address at or around 11:45 am and 12:05 pm physically by visiting him in his apartment building located at 125 Patterson Street, Apartment 336, San Jose California containing the lawsuit, the summons, the ADR coversheet, the coversheet containing the charges, the ground of complaint and all the attached documents. I had personally gone inside the building and then went inside the building and then rung the bell to inform Defendant about the lawsuit and served him there. The Defendant had personally opened the door and picked up the documents. I had taken photographs of the entry to the building on April 16 as proof of future challenge in my phone and is being filed along with this affidavit. Also attached are the photographs which show I was present outside the building on the day of service of papers. After service of papers I had filed the proof of service with proper description as is required under the laws.” (Ngoc Ta decl. at ¶¶3-8.)

The Court notes that none of the copies of photographs attached to this declaration are properly authenticated or have a verifiable time-stamp. None of the attached photos or any of the other documents submitted with the opposition show or establish actual personal service on Defendant on April 16, 2019.

Plaintiff has failed to meet her burden on this motion to show by a preponderance of the evidence, that valid service of the original complaint took place. Plaintiff’s only evidence, the declaration from Ngoc Ta at best suggests that personal service may have occurred on April 16, 2019 at the time and place stated on the proof of service. As noted on the proof of service for the original complaint, Ngoc Ta is not a registered process server, so the facts in his declaration of service on that proof of service are not presumed to be true. Also, as Defendant’s Reply points out the declaration submitted with the opposition is rather general and contradicts or is inconsistent with the proof of service for the original complaint signed by Ngoc Ta. The April 16, 2019 proof of service states that Ngoc Ta’s address is 1490 Freeland Drive, Milpitas, CA. His declaration signed August 15, 2019 states (at ¶2) “I live in San Jose since 2015 or so.” The proof of service states that personal service took place at 12:02 pm while the declaration states that service took place “at or around 11:45 am and 12:05 pm.” The original proof of service (which does not contain the handwritten alterations on the version filed with the Court) states that Defendant was served at apartment 126 while the declaration states that Defendant was served “at his mailing address . . . in his apartment building.”

Defendant’s motion to quash is GRANTED on the basis that personal service, or any proper service, of the original complaint has not been established. This means that service of the FAC by regular mail only (apparently served without any accompanying acknowledgement of service of summons) was improper and insufficient to establish personal jurisdiction.

Personal jurisdiction is a question of law where no conflicting evidence exists; where conflicting declarations exist as they do here, the court has the discretion to decide which to “believe” so long as “substantial evidence” supports the decision. (Evangelize China Fellowship v. Evangelize China Fellowship (1983) 146 Cal.App.3d 440, 445 [“Evangelize”].) Here, the Court finds the declarations submitted by Defendant (particularly those by non-parties Bryce Mariano and Kirby Chiang) more credible than the declaration of Ngoc Ta, and the declarations submitted by Defendant constitute substantial evidence that Defendant was at work at 12:02 pm on April 16, 2019 and that no personal service at his home address could have occurred on that date at that time.

Defendant’s request that the Court strike Plaintiff’s request for entry of default is DENIED. While default cannot be entered without establishing proper service (which the Court has just determined has not yet happened) Defendant cites no authority for the proposition that such a request (effectively a motion to strike) can be made as part of a motion to quash service by a defendant.

Defendant’s request for monetary sanctions pursuant to CCP §128.5 is DENIED. Defendant has not established that any of Plaintiff’s actions, including the filing of a request for entry of default, were taken in bad faith, were frivolous, or were solely intended to cause unnecessary delay.