Case Number: 19STCV11315 Hearing Date: September 19, 2019 Dept: 4A

Motion to Quash Service of Summons

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 2, 2019, Plaintiff William Wang (“Plaintiff”) filed a complaint against Defendant FengZhong Wang (“Defendant”) alleging assault and intentional infliction of emotional distress for threats to kill Plaintiff made on April 2, 2018.

On August 21, 2019, Defendant filed a motion to quash the service of summons pursuant to California Code of Civil procedure section 418.10.

Trial is set for September 29, 2020.

PARTY’S REQUESTS

Defendant requests that the Court quash the service of summons on Defendant arguing that the complaint and summons were not delivered to a competent member of Defendant’s household to effectuate proper substitute service.

LEGAL STANDARD

A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over it. (Code Civ. Proc. § 418.10, subd. (a).) California Code of Civil Procedure section 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 342.) Although the defendant is the moving party, the burden of proof is on the plaintiff to defeat the motion by establishing that jurisdictional grounds exist. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)

Under Evidence Code section 647, “[t]he 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.” Under Evidence Code section 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”

DISCUSSION

On July 21, 2019, Plaintiff had someone leave a civil case cover sheet, summons, and copy of the complaint with a person who is not Defendant’s household member at Defendant’s residence. (Wang Decl., ¶¶ 2-3.) On July 23, 2019, Plaintiff’s counsel personally served Defendant with the summons and complaint. (Fu Decl., ¶¶ 3-8, 11, Exh. 1.) In reply, Defendant declares that he has never been with the summons and complaint. (Reply Wang Decl., ¶ 3.)

There is no presumption of proper service here. The proof of service indicates the personal service was not made by a registered process server. There is no proof of service filed with the Court regarding the initial service, and thus, the Court cannot assume that a registered process server effectuated the July 21, 2019 substituted service. Thus, Defendant has met his burden in establishing he has not been properly served by substituted service with the summons and complaint in this action.

Even so, Plaintiff’s attorney declares that he personally served Defendant with the summons, complaint and other initiating documents when Defendant went to counsel’s office, handed Plaintiff’s attorney the court documents left at his house, and then received those documents back from Plaintiff’s counsel. While Defendant protests the accuracy of this declaration, the Court credits the version provided by Plaintiff’s counsel and finds that Defendant was personally served July 23, 2019.

The motion is DENIED.

The July 21, 2019 proof of service of the summons and complaint on Defendant, if such proof of service exists, is QUASHED.

The July 23, 2019 proof of service of the summons and complaint on Defendant is found to be valid. Defendant is ordered to answer or otherwise respond to the Complaint within 30 days of this ruling.

Plaintiff is ordered to give notice of this ruling.