Minute Order

Cal. Super. - 6th Dist.April 15, 2019

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Nhu Nguyen vs Thang Le Hearing Start Time: 9:00 AM 19CV346026 Hearing Type: Motion: Quash Date 0f Hearing: 09/24/2019 Comments: Heard By: Pierce, Mark H Location: Department 2 Courtroom Reporter: - N0 Court Reporter Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. Tentative ruling is not contested. Tentative ruling is adopted as follows; The matter arises from a now apparently ended romantic relationship between Pro Per Plaintiff Nhu Le Nguyen ( Plaintiff ) and Defendant Thang Manh Le ( Defendant ). Plaintiffs original complaint was filed 0n April 15, 2019 and was according t0 a proof 0f 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 0n April 23, 2019 and according to a proof of service filed 0n April 23, 2019 was served 0n Defendant via regular mail. Currently before the Court is Defendant s motion t0 quash service 0f summons 0n the ground 0f 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 0f default filed on May 29, 2019 was improper as there had been n0 proper service. Proper service 0f a summons and complaint must be done in compliance with the Code of Civil Procedure( CCP ). The CCP permits several different kinds 0f service. Among those relevant here, CCP 415.10 states that a summons may be served by personal delivery 0f a copy of the summons and complaint to the person to be served. The declaration 0f service must state the time and place where the summons and complaint were delivered t0 defendant. Service can also be accomplished via mail if the proper procedure is followed and the person to be served signs an acknowledgement 0f summons. (CCP 415.30.) Here, there is n0 evidence of any acknowledgement 0f service 0f summons signed by Defendant in relation to service of the FAC. Thus service 0f the FAC 0n 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 0n the plaintiff to establish the facts 0f 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 0n the ground of improper service of process the burden is 0n the plaintiff to prove the facts requisite t0 an effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The plaintiff must demonstrate by a Printed: 9/24/2019 09/24/2019 Motion: Quash 7 19CV346026 Page 1 0f4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER preponderance 0f the evidence that proper service 0f the summons and complaint was effectuated. (Boliah v. Superior Court (1999) 74 Cal.App.4th 984, 991.) The filing of a proof 0f service that complies with applicable statutory requirements by itself creates a rebuttable presumption that service was proper. (Dill v. Berquist Construction C0. (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.) T0 rebut the presumption created by the filing 0f the proof 0f service 0f 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 0f service for the original complaint that he was given, that he was personally served 0n April 26, 2019 at 2:02 p.m.at 125 Patterson Street, Apartment 126 in San Jose, California is false. | was not served at that time or at any other time. On April 16, 2019 at 2:02 p.m., | was working at Hancock Medical, |nc., dba Beddr Sleep, 897 Independence Avenue, Mountain View California, where | run the QA team. In addition, while the proof 0f service indicates | was served at 125 Patterson Street, Apartment 126, San Jose California (see Exhibit A to Declaration 0f Gordon J. Finwall), my home address is 125 Patterson Street, Apartment 336, San Jose, California. | have n0 connection t0 Apartment 126 and have never been in that unit. Iwas also not personally served with the [FAC]. Rather, | received a copy 0f 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 0f the proof 0f service for the purported personal service 0f the original complaint is attached as exhibit A. This is the proof 0f service given t0 Defendant and it does not contain the handwritten corrections present on the copy filed with the Court. Exhibit B is a copy 0f the FAC, exhibit C is a copy 0f the proof 0f service for the FAC, and exhibits D-J are copies 0f communications (letters and email) between Mr. Finwall and Plaintiff. The third declaration is from Bryce Mariano, a non-party t0 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 | organize, prioritize and generally manage the various engineering projects that are being worked 0n. The Quality Assurance team, which [Defendant Le] heads, is intimately involved in the daily activity 0fthe development team as he tests and verifies the new features 0r bug fixes that the engineering team marks as complete. Our team uses an online tool called JIRA t0 define, track and discuss the various units 0f work (referred t0 as issues). As Administrator 0f the JIRA tool, | get various email updates for most 0f 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 0f emails that show Mr. Le was working 0n 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. 0n April 16, 2016, Mr. Le mentions a conversation that the two 0f us had in person just before he created the issue. From my personal recollection and the evidence shown in these emails, | 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, |nc., dba Beddr Sleep in Mountain View, California. lwork 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.) Printed: 9/24/2019 09/24/2019 Motion: Quash 7 19CV346026 Page 2 0f 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER These four declarations are sufficient t0 dispel the presumption 0f proper service created by the filed proof 0f service for the original complaint, purporting t0 show personal service 0n Defendant at his home at 12:02 p.m. 0n 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 0n the truth 0f the presumed fact, the other party is n0 longer aided by that presumption and the presumption disappears, leaving it t0 the party in whose favor it initially worked to prove the fact in question. ]) With her opposition t0 the motion t0 quash Plaintiff has submitted a declaration from Ngoc Ta (sometimes referred t0 as Ngoc + Ta ), the individual who signed the proof 0f service for the original complaint. Ngoc Ta states that he was asked t0 serve the papers relating t0 the above lawsuit, and that [t]he papers were hand delivered to Defendant at his mailing address at 0r 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 0f complaint and all the attached documents. | had personally gone inside the building and then went inside the building and then rung the bell t0 inform Defendant about the lawsuit and served him there. The Defendant had personally opened the door and picked up the documents. | had taken photographs 0f the entry t0 the building 0n April 16 as proof 0f future challenge in my phone and is being filed along with this affidavit. Also attached are the photographs which show | was present outside the building 0n the day 0f service 0f papers. After service 0f papers | had filed the proof 0f service with proper description as is required under the laws. (Ngoc Ta decl. at 3-8.) The Court notes that none 0f the copies 0f photographs attached to this declaration are properly authenticated 0r have a verifiable time-stamp. None 0f the attached photos 0r any 0f the other documents submitted with the opposition show 0r establish actual personal service 0n Defendant 0n April 16, 2019. Plaintiff has failed t0 meet her burden 0n this motion t0 show by a preponderance 0f 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 0n April 16, 2019 at the time and place stated 0n the proof 0f service. As noted 0n the proof 0f service for the original complaint, Ngoc Ta is not a registered process server, so the facts in his declaration 0f service 0n that proof 0f service are not presumed t0 be true. Also, as Defendant s Reply points out the declaration submitted with the opposition is rather general and contradicts 0r is inconsistent with the proof 0f 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) | live in San Jose since 2015 0r so. The proof 0f service states that personal service took place at 12:02 pm while the declaration states that service took place at 0r around 11:45 am and 12:05 pm. The original proof of service (which does not contain the handwritten alterations 0n 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 t0 quash is GRANTED 0n the basis that personal service, 0r any proper service, 0f the original complaint has not been established. This means that service of the FAC by regular mail only (apparently served without any accompanying acknowledgement 0f service 0f summons) was improper and insufficient t0 establish personal jurisdiction. Printed: 9/24/2019 09/24/2019 Motion: Quash 7 19CV346026 Page 3 0f 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Personal jurisdiction is a question 0f law where n0 conflicting evidence exists; where conflicting declarations exist as they d0 here, the court has the discretion t0 decide which t0 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 0f Ngoc Ta, and the declarations submitted by Defendant constitute substantial evidence that Defendant was at work at 12:02 pm 0n April 16, 2019 and that n0 personal service at his home address could have occurred 0n that date at that time. Defendant s request that the Court strike Plaintiff s request for entry 0f default is DENIED. While default cannot be entered without establishing proper service (which the Court has just determined has not yet happened) Defendant cites n0 authority for the proposition that such a request (effectively a motion t0 strike) can be made as part 0f a motion t0 quash service by a defendant. Defendant s request for monetary sanctions pursuant t0 CCP 128.5 is DENIED. Defendant has not established that any 0f Plaintiff s actions, including the filing 0f a request for entry 0f default, were taken in bad faith, were frivolous, or were solely intended t0 cause unnecessary delay. - 00000 - Printed: 9/24/2019 09/24/2019 Motion: Quash 7 19CV346026 Page 4 0f 4