Case Number: KC070031 Hearing Date: March 29, 2018 Dept: O

Vians, LLC v. Chitu-USA Group, LLC (KC070031)

Defendant Chitu-USA Group, LLC’s MOTION TO QUASH SERVICE OF SUMMONS TO PLAINTIFF VIANS, LLC’S COMPLAINT

Respondent: Plaintiff, Vians, LLC

TENTATIVE RULING

Defendant Chitu-USA Group, LLC’s motion to quash service of summons to Vians, LLC’s complaint is granted. Judgment and Writ is set aside. Proposed Answer is ordered filed today.

Defendant Chitu-USA Group, LLC (“defendant”) moves the court, per CCP §§ 473(d) and 473.5 and the court’s inherent equitable powers, for an order setting aside the default and any judgment thereon taken against it and to recall and quash any writs of execution that may have been issued to enforce the judgment, on the basis that the default judgment is void. Defendant contends that service of the summons here did not result in actual notice to it in time to defend the action. Defendant claims that Plaintiff Vians, LLC (“plaintiff”) failed to properly serve defendant’s agent for service of process, Lixin Ding (“Ding”) and that, as such, it is entitled to an order quashing service of the summons and complaint pursuant to CCP § 418.10.

CCP § 473(d) : “The court may, upon motion of the injured party, … set aside any void judgment or order.”

Defendant also seeks relief under CCP § 473.5. “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” CCP § 473.5(a). “A notice of motion to set aside a default or default judgment and for leave to defend the action…shall be accompanied by an affidavit under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service of inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” CCP § 473.5(b).

“[CCP § 473.5] is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication. [See Randall v. Randall (1928) 203 Cal. 462, 464-465; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180].” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 5:420 (emphasis theirs). “If the summons was not properly served, relief from default or default judgment should be sought under CCP § 473(d) (relief from void judgments).” Id. (emphasis theirs). Here, defendant is contending that service was not properly effectuated; as such, it is not entitled to relief under Section 473.5.

“’[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444). Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. (Brown v. Williams (2000) 78 Cal.App.4th 182, 186-187, fn. 4; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶ 5:485, pp. 5–113 to 5–114.).” Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.

“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. (§ 410.50). 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. (Taylor Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 110; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211; Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868).” Dill, supra, 24 Cal.App.4th at 1439-1440.

At the outset, the court notes that defendant is a limited liability company. Service on a limited liability company is effectuated by serving the person designated as its agent for service of process. Corporations Code § 17701.16(b). The designated agent may be served either by personal service (CCP § 415.10), substitute service (CCP § 415.20(a)) or service by mail with acknowledgment of receipt (CCP § 415.30(a)). No showing of reasonable diligence is necessary for substitute service on entity defendants. See CCP § 415.20(a).

On 3/1/18, plaintiff filed a proof of service, which reflected that Yali Yu (“Yu”), who was identified as the “agent for service of process” for defendant, had been personally served with the summons and complaint on 2/14/18 at 5:44 p.m. at 957 Lawson Street in the City of Industry, 91748 by registered process server Osmin Franco (“Franco”).

“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Evidence Code § 647. “Under Evidence Code section 647, the proof of service ‘establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.’” Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.

Ding, in turn, attests that he is listed as defendant’s agent for service of process, and that no attempts were made to serve him personally. (Ding Decl., ¶ 10). Ding has provided the court with a “Business Search – Entity Detail” print-out for defendant from the California Secretary of State website, which reflects that he is, in fact, defendant’s agent for service of process. (Id., ¶ 10, Exhibit “C”). Further, Ding attests that he had informed plaintiff that he would be traveling to China on or about late January 2018 to the middle of February 2018, and produces evidence that he, in fact, flew out of Los Angeles County on 1/19/18 and flew to China, where he remained until 2/19/18. (Ding Decl., ¶¶ 6-7, Exhibits “A” & “B”).

Process server Franco has submitted a declaration. Franco attests that on 2/12/18 at approximately 4:55 p.m., he went to 957 Lawson Street in the City of Industry (“premises”) to serve the summons and complaint and spoke with two people there, who identified themselves as Tien and Alice. (Franco Decl., ¶ 2). He was told there was no manager there to be served at that time. (Id.). Franco then went to 17700 Castleton Street in the City of Industry (“Castleton address”), which he represents was the address for defendant’s agent for service of process, according to Secretary of State records from 2012. (Id., ¶ 4). The Castleton address is a law office. (Id.). An attorney present at the Castleton address told him that the firm no longer represented defendant. (Id.). He returned on 2/14/18 at 11:30, and was again told by Tien and Alice there was no manager there to be served. (Id., ¶ 3). He returned to the premises later that day, at approximately 5:20 p.m., and met with “Lilly” and Alice.” (Id., ¶ 5). Franco attests that he was told that Yu was an owner of defendant, and could accept service. (Id.). He expressly states that he “was told this by both Ms. Yu and the other people present.” (Id.). He personally served Yu at approximately 5:44 p.m. (Id.).

The proof of service filed with the court on 3/1/18 identified Yu as the “agent for service of process” and reflected that personal service was effectuated upon her. This is incorrect. Franco does not attest that he was ever told that Yu was defendant’s “agent for service of process.” It is evident, then, that only substitute service was effectuated; however, it does not appear, both from the proof of service and Franco’s declaration, that copies of the summons and complaint were thereafter mailed to Ding in compliance with CCP § 415.20.

Defendant’s motion is granted. Judgment and Writ is set aside. Proposed Answer is ordered filed today.