Judge: Anne Richardson, Case: 22STCV28384, Date: 2024-11-08 Tentative Ruling

Case Number: 22STCV28384    Hearing Date: November 8, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiffs Carlos Castro and Gissella Castro (the Castros) sue Defendants White Cloud Capital LLC (White Cloud), TCS Building Solution Inc., Antonios Simos, and Does 1 through 25 inclusive (collectively Defendants) pursuant to an August 31, 2022 Complaint for: (1) Temporary Restraining Order, Preliminary and Permanent Injunction; (2) Adverse Possession; (3) Nuisance; (4) Trespass; (5) Quiet Title; (6) Prescriptive Easement; (7) Equitable Easement; and (8) Declaratory Relief.

The claims arise from a disputed portion of land that abuts the Castros’ and the Defendants’ properties. The Castros own real property located at 1719 Grafton Street, Los Angeles, California, 90026 (Lot 20). Defendants own real property located at 1536 Lemoyne St., Los Angeles, California, 90026 (Lot 21). The Castros allege that the Defendants’ construction on Lot 21 has caused dirt, debris and noise to trespass onto their property. The Castros also assert that the Defendants have told them that they are not entitled to the portion of land along the northern boundary of the Castros’ yard where the Castros’ patio and fence are currently situated.

On December 29, 2022, White Cloud Capital filed a Cross-Complaint for: (1) Injunctive Relief; (2) Nuisance; (3) Quiet Title; and (4) Declaratory Relief. White Cloud asserts that the Castros’ garden wall is located on White Cloud’s property within a 14-foot required rear setback which area is required by the Los Angeles Municipal Code to remain clear. White Cloud asserts that the garden wall is deteriorating, unsafe and cannot support the upper hillside in the rear yard of White Cloud’s property. White Cloud further asserts that the Castros have interfered with White Cloud’s rights, work, and all efforts to remediate and render safe both properties.

B. Motion Before the Court

On October 1, 2024, the Castros filed the instant motion to quash White Cloud Capital’s service of summons and for dismissal of the action for failure to serve the summons and Cross-Complaint within two years.

On October 28, 2024, White Cloud Capital opposed the motion. No reply has been filed.

II. Motion

A. Legal Standard

A motion to quash can be brought on the ground that the court lacks personal jurisdiction over the defendant, e.g., because service was improper. (See Code Civ. Proc., § 418.10, subd. (a)(1); see, e.g., Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 433 [defendant filed motion to quash on ground that service on corporation was defective because it did not comply with Code Civ. Proc., § 410, now § 412.30]; County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 446 [defendant filed motion to quash on ground that service was defective because summons did not specify date for answering and appearing].) 

The defendant should attach evidence to support its motion. (See School Dist. of Okaloosa Cty. v. Superior Court (1997) 58 Cal.App.4th 1126, 1131 [defendant must present some admissible evidence in form of affidavits or declarations to place issue of lack of jurisdiction before court]; see, e.g., Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 563 [defendant supported motion to quash with declarations]; cf. Floveyor Int’l v. Superior Court (1997) 59 Cal.App.4th 789, 793-794 [“‘A defendant who takes the position that the service of summons as made upon him did not bring him within the jurisdiction of the court’[] may serve and file a notice of motion to quash the service,’” where “‘the effect of such a notice is to place upon the plaintiff the burden of proving the facts that did give the court jurisdiction … [or] the facts requisite to a[] [showing of] effective service,’” citations omitted].)

B. Analysis

The Castros assert that service of the cross-complaint was improper because email is not an authorized method of service, the summons was served by an interested party in the action, the proofs of service do not indicate an email address, and the office address listed on the proof of service has not been affiliated with the Castro’s counsel since prior to the filing of this action. (Mot. p. 5:22-27.)   

Code of Civil Procedure section 428.60 governs service of cross-complaints. Section 428.60 subsection (2) states in relevant part, “If a party has appeared in the action, the cross-complaint shall be served upon his attorney, or upon the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code.” (Code. Civ. Proc. § 428.60 subd. (2).)

Here, the proof of service filed with the Cross-Complaint on December 29, 2022, and the amended proof of service filed on September 19, 2024, state that the Castros’ counsel, Armand J. Jaafari, was served on December 29, 2022 via mail at 626 Wilshire Blvd., Ste. 410 Los Angeles, CA, 90017 and via email at ajafaari@grandparklaw.com. (12/29/22 Proof of Service; 9/19/24 Amended Proof of Service.)

The Castros’ assertion that email is not a proper method of service relies on Code of Civil Procedure section 415.40 which is inapplicable to service of the cross-complaint here (See Code. Civ. Proc. § 415.40 [pertaining to summons on persons outside this state].) Code of Civil Procedure section 428.60 allows for service of summons by mail by referencing section 1010 et seq. Additionally, Code of Civil Procedure section 1010.6, subdivision (a)(3)(A) allows for electronic service where a document may be served by mail (Code. Civ. Proc. § 1010.6 subd. (a)(3)(A).) Although the Castros’ counsel asserts that the cross-complaint was served to the wrong address, the office address is the same address that the Castros’ counsel uses on the Complaint, and no change of address has been filed. (Compare Compl. p. 1 with 12/29/22 Proof of Service.)

The Castros’ argument that service was improper because it was served by an interested party in the action is also unavailing because the service was effected by White Cloud’s counsel, Donna Bullock, who is not a party to the action. (12/29/22 Proof of Service; 9/19/24 Proof of Service.) Lastly, the Castros do not assert that they did not actually receive the Cross-Complaint or have notice of it. (See 4/24/23 Minute Order [“Defendant's Counsel represents that cross-defendants were served.”]; Bullock Decl., Ex. E.)

Next, the Castros assert that the Cross-Complaint should be dismissed pursuant to various statutes and rules of court granting the Court discretionary authority to dismiss a cause of action due to unreasonable delay. (Mot. pp. 6-11.) However, as discussed above, the Cross-Complaint was properly served on December 29, 2022. (12/29/22 Proof of Service; 9/19/24 Amended Proof of Service.) There is no indication that White Cloud has unreasonably delayed in bringing or serving the Cross-Complaint.

Thus, the motion is denied.  

III. Conclusion

Plaintiffs/Cross-Defendants’ Motion to Quash and for Dismissal of this Action is DENIED.