Case Name: Xiao Zhen Wu, et al. v. Loi Truong, et al.
Case No.: 18CV334037

This is an action for alleged property damage at rental units owned by pro per plaintiffs Xiao Zhen Wu and Daisy Amaya (“Plaintiffs”). In their original complaint filed September 7, 2018 Plaintiffs allege that various defendants, alleged former tenants, damaged rental units owned by Plaintiffs before leaving. Currently before the Court is a motion to quash service of summons purportedly effected by personal service brought by Defendants Loi Truong and My Nguyen (“Defendants”), filed January 10, 2019. Defendants deny that personal service, or any other proper service, ever occurred. Plaintiffs filed a one-page opposition to the motion on February 22, 2019.

Defendants move to quash service of summons pursuant to Code of Civil Procedure (“CCP”) §418.10, which provides that a defendant, on or before the last day of his/her time to plead or within any further time that the court may for good cause allow, may move to quash service of summons on the ground of lack of jurisdiction on the court over him/her. (CCP §418.10(a).)

As an initial matter the Court notes that Defendants in their reply urge the Court to treat the motion as unopposed and not consider the opposition filed by Plaintiffs as Defendants argue the opposition was not served on them. The Court observes that no proof of service accompanies Plaintiffs’ opposition and none was separately filed. However, as it is apparent from the Reply that Defendants had no difficulty detecting and responding to the opposition (despite claiming prejudice) the Court will exercise its discretion to consider the opposition rather than deem the motion unopposed. Plaintiffs are cautioned that “when a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations omitted.) The Court expects Plaintiffs to observe all procedural requirements going forward.

The Court also notes that the Opposition argues that “defendants did not respond timely.” (Opp. at 1:18.) To the extent this is meant as an argument that the motion to quash is untimely the Court finds the argument unpersuasive. In any event CCP §418.10(a) provides in pertinent part that a motion to quash may be brought “within any further time that the Court may for good cause allow.” Assuming for purposes of argument that the motion to quash were untimely, as the central point of contention on this motion is whether the claimed personal service ever occurred (and started the time running to file a motion to quash), the court finds that good cause exists to consider Defendants’ motion even if it were assumed to be untimely.

“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.) Plaintiffs’ opposition does not make any cogent argument that an effective service was made but the Court notes that two proofs of service, indicating personal service was made on both Defendants on October 14, 2018 at 10:00 a.m. by “independent contractor” Alex Lawas, were filed on October 24, 2018. 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.)

In an effort to rebut this presumption of proper service, both Defendants have filed declarations asserting under penalty of perjury that no personal service occurred on October 14, 2018 (or ever) and that the only attempted service took place months later. Defendants Loi Truong and My Nguyen both state that “[o]n January 3, 2019, I found the complaint for this lawsuit in my mailbox. I was never personally served with the complaint nor was it delivered to me in any other authorized fashion. The envelope the complaint came in does not have a postmark.” (See declarations of Loi Truong and My Nguyen at ¶3.) Defendant Truong adds that “[a]ttached as Exhibit A is a true and correct copy of the envelopes we found in our mailbox.” (Truong declaration at ¶3.) However, there are no exhibits attached to the Truong declaration and no copy of an envelope is found among the exhibits attached to the declaration of Defense Counsel Lara Flynn Strazzo filed in support of the motion.

In their Reply Defendants also point out that Plaintiffs’ independent contractor Alex Lawas purports, on the filed proofs of service, to have personally served defendants at two different addresses in San Francisco (51 Cassandra Court [where moving Defendants reside] and 407 Athens Street) simultaneously at 10:00 a.m. on October 14, 2018, an impossible feat. (See exhibit C to the declaration of Defense Counsel Strazzo in support of the Reply.)

By supplying Defendants’ two declarations denying that personal service ever took place and calling the Court’s attention to the implausibility of the filed proofs of service, the Court finds that Defendants have sufficiently rebutted the presumption of proper service. (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 the presumption gone, the burden to prove “the facts requisite to an effective service,” remains with Plaintiffs. By failing to supply any evidence with their opposition and by failing to make any cogent argument in the opposition other than to suggest that the motion is untimely, Plaintiffs have failed to meet their burden to prove that proper service (by personal service or other means) occurred. Accordingly the Court finds that proper service was not effectuated and Defendants’ motion to quash service is GRANTED.

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