Judge Ashfaq G. Chowdhury, Case Number: 24NNCV00471, Date: 2024-07-19 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV00471, Date: 2024-07-19 Tentative Ruling

Case Number: 24NNCV00471 Hearing Date: July 19, 2024 Dept: E

Case No: 24NNCV00471
Hearing Date: 07/19/2024-8:30am

Trial Date: UNSET

Case Name: AMERICAN EXPRESS NATIONAL BANK v. VERJINE YESAIAN

TENTATIVE RULING ON MOTION TO

Moving Party: Defendant, Verjine Yesaian

Responding Party: No Opposition by Plaintiff

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok

Proper Address: Uncertain – Defendant allegedly served this motion via U.S. Mail. There are some discrepancies between the address that Defendant wrote down on the proof of service for Plaintiff’s counsel, and the address that the Court has on file on eCourt for Plaintiff’s counsel.

For example, Defendant’s proof of service indicates that Plaintiff’s counsel was served by U.S. Mail at 250 N Sunny Slope Rd 300, Brookfield WI 53005-4809.

However, on eCourt, Plaintiff’s counsel’s address is listed as 250 N Sunnyslope Road, Suite 300, Brookefield, Wisconsin, 53005.

As can be seen, Defendant’s proof of service left out the first “e” in Brookefield according to eCourt. Further, Defendant’s proof of service separated Sunnyslope into two words as opposed to being one word as listed on eCourt.

TENTATIVE RULING
It is unclear if Defendant is aware of what is being heard on 7/19/2024.

The motion to quash service of summons being heard on 7/19/2024 pertains to the motion ending with Res ID 4249. This motion was filed on 5/17/2024. It was initially scheduled to be heard on 6/21/2024, but the Court reset the hearing for 7/5/2024. On 6/25/2024, the Court rescheduled the hearing set for 7/5/2024 to 7/19/2024.

Defendant’s motion to quash (Res ID 4249) does not explicitly state which proof of service Defendant seeks to quash, but presumably it is the proof of service filed on eCourt on 5/1/2024.

The Court presumes that the motion to quash (Res ID 4249) seeks to quash the proof of service filed on eCourt on 5/1/2024 because the only other proof of service filed on eCourt was filed on 7/9/2024. Since this motion (Res ID 4249) was filed on 5/17/2024, and the proof of service filed on 7/9/2024 has an alleged service date of 7/5/2024, it seems like it wouldn’t make sense to be able to direct a motion filed on 5/17/2024 at a proof of service that wasn’t served until 7/5/2024 and filed until 7/9/2024.

Defendant is likely unaware of what is being heard on 7/19/2024 because the motion to quash (Res ID 1837) that was filed on 7/12/2024 indicates that “Hearing was not held for the First Quash.” However, this is not true, the hearing for the first motion to quash is scheduled for 7-19-2024 as indicated by the Notices Re: Continuance of Hearing and Order filed on 6/10/2024 and 6/25/2024.

Therefore, to the extent that Defendant is under the assumption that the motion to quash (Res ID) 1837) that was filed on 7/12/2024 is on calendar for 7-19-2024, Defendant is mistaken. The motion to quash (Res ID 1837) is on calendar for 8/9/2024.

The Court will hear argument on whether the motion to quash (Res ID 4249) on calendar for 7-19-2024 should be denied as moot in light of the filing of the motion to quash (Res ID 1837) on calendar for 8-9-2024.

The Court notes that to the extent that it is hearing the motion to quash (Res ID 4249), the motion is borderline indecipherable.

Defendant’s motion stated:

COMES NOW Verjine Yesaian, Defendant in the above-styled and numbered cause, and moves the Court for an order quashing the process served in this action on Defendant and vacating the return of service on the grounds that the process was not (e.g., issued or served) according to California code of Civil Procedure according to the provisions of CCP 416.90- summons check box unclear if 416.90 or other. This Motion is made and based on the declaration of Verjine Yesaian, and the alleged proof of service.

(Mot. p. 1.)

“A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (CRC, Rule 3.1113(a).)

Further, under CRC 3.1114(a):

Civil motions, applications, and petitions filed on Judicial Council forms that do not require a memorandum include the following:

(1) Application for appointment of guardian ad litem in a civil case;

(2) Application for an order extending time to serve pleading;

(3) Motion to be relieved as counsel;

(4) Motion filed in small claims case;

(5) Petition for change of name or gender;

(6) Petition for declaration of emancipation of minor;

(7) Petition for injunction prohibiting harassment;

(8) Petition for protective order to prevent elder or dependent adult abuse;

(9) Petition for order to prevent postsecondary school violence;

(10) Petition of employer for injunction prohibiting workplace violence;

(11) Petition for order prohibiting abuse (transitional housing);

(12) Petition to approve compromise of claim of a minor or a person with a disability; and

(13) Petition for withdrawal of funds from blocked account.

(CRC, rule 3.1114(a).)

Here, Defendant did not file and serve a supporting memorandum, and Defendant’s motion was not exempt under 3.1114(a).

“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (CRC, Rule 3.1113(b).)

By not having a memorandum, Defendant’s motion is borderline incomprehensible.

Defendant seeks to quash the process served on the grounds that the process was not issued or served according to CCP § 416.90, summons check box unclear if § 416.90 or other.

“A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” (CCP § 416.90.)

Defendant makes no explanation as to what its argument is with respect to 416.90.

Defendant also submits a declaration that states:

1.) I am named as the defendant in this matter and reside at 831 East Orange Grove ave , in Burbank Ca.

2.) I have never been personally served with a copy of the summons and complaint in this case to my place of residents mentioned above. I am informed and believe that on or about May 3d, 2024, someone affixed some legal documents along with a note which have included as exhibit (B) to the outside wall by the front door of my residents mentioned above. I have never received a copy of the summons and complaint in this case through the mail to my place of residents mentioned at the above address.

3.) I have included copies of the summons and complaint that was attached to the wall by the door of my residents mentioned above as exhibit (A).

4.) Except as described above, I have no knowledge of the delivery to me of the summons and complaint in this case.

5.) The proof of service filed by the plaintiff, which is attached as exhibit (A), does not indicate whether he mailed the summons and a copy of the complaint, and, in fact, does not indicate that the summons and the copy of the complaint were even served, and all that was seen was a date on the summons without any clarity of the checked box to which proof of service CCP 416, with no name of the person receiving the summons. Rather, the proof of service filed with the complaint identifies the served papers with only a date.

6.) I declare under penalty of perjury under the laws of the state of California that the forgoing is true and correct.

(Yesaian Decl. ¶¶ 1-6.)

Confusingly, while the Yesaian Declaration at ¶ 5 refers to the attached Exhibit A, the attached Exhibit A in Defendant’s moving papers isn’t even a proof of service. It is simply a summons, but there is no proof of service.

Most importantly, Defendant does not state what the legal standard is for a motion to quash service of process, and how it satisfied the legal standard required for quashing service of process.

If this motion is not deemed moot, then the Court will likely deny Defendant’s motion to quash. Defendant does not attempt to comply with CRC 3.1113(a) or (b), and Defendant makes no argument using legal authority as to how it satisfied the standard required in order to quash service of process, whatever that standard may be.

To the extent that Defendant thinks the motion to quash (Res ID 1837, on calendar for 8-9-2024) is on calendar for 7-19-2024, Defendant is incorrect. Further, the motion to quash (Res ID 1837) on calendar for 8-9-2024 would not be timely for a hearing on 7-19-2024 because he motion to quash (Res ID 1837) was not served by U.S. Mail until July 11, 2024. (See CCP § 1005(b).)