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Laura Lebel v. Eric Mai

November 6, 2012

LAURA LEBEL, PLAINTIFF AND APPELLANT,
v.
ERIC MAI, DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of Los Angeles County. Linda K. Lefkowitz, Judge. (Los Angeles County Super. Ct. No. SC114430)

The opinion of the court was delivered by: Grimes, J.

CERTIFIED FOR PUBLICATION

Affirmed.

The sole question on appeal is whether the trial court erred in granting defendant and respondent Eric Mai's motion to quash service of process. Plaintiff and appellant Laura Lebel contends the court erred in finding the substituted service on defendant's mother in California was inadequate to effectuate valid service on defendant, a resident of England. We conclude the trial court did not err in quashing service, and therefore affirm the order.

BACKGROUND

We summarize only those facts pertinent to the narrow issue presented on appeal. In February 2010, plaintiff entered into a residential lease agreement with defendant for the rental of a condominium in Santa Monica, California. At some point during her tenancy, plaintiff became dissatisfied with the tenancy, moved out, and filed this action. In October 2011, plaintiff filed her operative first amended complaint naming defendant in causes of action for constructive eviction and fraud.

Plaintiff thereafter tried to serve defendant at a residential address in Granada Hills, California. The address had been provided by defendant to plaintiff as the mailing address where she could remit her monthly rental payments. The proof of service attesting to service on defendant was executed by a registered process server. It declares that defendant was served as an individual defendant via substituted service at his "home" in Granada Hills, with the service documents being left with "co-occupant" Su-Su Mai. The declaration also states that substituted service was made on Ms. Mai after several efforts to personally serve defendant at the Granada Hills residence proved unsuccessful. The process server declared that Ms. Mai told him defendant did not reside at that address.

Defendant specially appeared in the action through the filing of a motion to quash service, arguing primarily that he was a resident of London, England, and therefore that service had to be effected in accordance with the Hague Convention regarding service of process on parties outside the United States.*fn1 Defendant submitted a declaration in which he stated he moved to England in October 2007, he continued to reside in London, England, and he did not maintain a residence in the United States. Defendant's mother, Su-Su Mai, also submitted a declaration, in which she stated that a process server came to her residence in Granada Hills on November 9, 2011, she told him defendant did not reside at her home, and she did not receive any additional documents except the copy of the amended summons and complaint the process server left that date. Defendant's motion was also supported by copies of the service documents received by Ms. Mai, as well as a declaration from defendant's attorney, Dennis Lee, attesting to his correspondence with counsel for plaintiff, including a letter stating that defendant resided in England and that compliance with the Hague Convention was required.

Plaintiff opposed the motion, contending that substituted service had been properly effected on defendant's ostensible agent, his mother Su-Su Mai, and that the service requirements of the Hague Convention did not apply because defendant's address in England was unknown to plaintiff. Plaintiff submitted a declaration in which she attested that she understood defendant "resid[ed] temporarily" in England, but that she was unaware of any physical or mailing address for him there. She also attached a true and correct copy of the lease agreement stating that defendant left blank paragraph 36 regarding the address at which notices could be served on defendant. Plaintiff also attached and attested to a copy of a letter from defendant that stated her rent checks should be mailed to the Granada Hills address. The opposition was further supported by a declaration of plaintiff's counsel, Douglas Mastroianni, who attested to his written and email correspondence with defendant and defense counsel.

The trial court granted defendant's motion to quash on April 24, 2012, explaining that plaintiff failed to meet her burden of showing that Ms. Mai was defendant's ostensible agent for service of process, or that there was substantial compliance with the rules governing substituted service. This appeal followed.

DISCUSSION

Where, as here, an issue is resolved by way of declarations or affidavits, " 'the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.' [Citation.] But we 'independently review [the trial court's] statutory interpretations and legal conclusions [citations].' [Citation.]" (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 (American Express).) And, when the evidence is not conflicting, the question of jurisdiction is one of law. (Great-West Life Assurance Co. v. Guarantee Co. of North America (1988) 205 Cal.App.3d 199, 204; see also CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1119.) We conclude the record establishes that valid service of process was not effected on defendant and the motion to quash was therefore properly granted.

It is undisputed plaintiff knew defendant was residing in England, temporarily or otherwise. As plaintiff admitted in her declaration, "[s]hortly after signing the [subject] lease" in February 2010, defendant provided her with a letter telling her that he lived in London. We quote pertinent parts of the letter, deleting personal email addresses and telephone numbers to preserve privacy: "If you have any questions during your stay, I can be contacted via email at [email address] or by dialling [sic] 011 44 [telephone number]. I reside in London at the moment, so due to the time difference, there may be a delay on my reply and I apologize in advance for that. [¶] I found my stay at Unit 107 to be almost completely trouble-free, but should there be any emergencies or maintenance needs, please email [email address] and CC me, or you can also call (818) [telephone number]. [¶] . . . [¶] Rent is due on the 1st of each month. Please make checks payable to Eric Mai, and send them via mail to: 12708 Dorina Place, Granada Hills, CA 91344. If you want to set up a direct transfer each month, drop me an email at [email address] and we should be able to get that arranged as well."

It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant. It is well settled that "[i]n 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. [Fn. omitted.] ([Code Civ. Proc.,] ยง 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." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440 (Dill), italics added; ...


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