Judge: Colin Leis, Case: 22STCV22553, Date: 2024-03-26 Tentative Ruling

Case Number: 22STCV22553    Hearing Date: March 26, 2024    Dept: 74

Michael Benincaso v. Luke Rottman

Specially Appearing Cross-Defendant Francesco Benincaso’s Motion to Quash Service of Summons and Cross-Complaint

The court considered the moving papers. No opposition was timely filed. (Code Civ. Proc., § 1005, subd. (b) [“All papers opposing a motion . . . shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.”].)

BACKGROUND

            This action arises from a contractual dispute.

            On July 12, 2022, Michael Benincaso filed a complaint against Luke Rottman. The complaint alleges breach of contract and intentional misrepresentation.

            On March 21, 2023, Luke Rottman filed a cross-complaint against Michael Benincaso and Francesco Benincaso.

            On February 13, 2024, Francesco Benincaso filed this motion to quash the service of the summons and cross-complaint.

LEGAL STANDARD

            “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, sudd. (a).)

DISCUSSION

            In support of his motion to quash, Francesco Benincaso argues substituted service on him was defective. Substituted service requires, in part, that the summons and complaint be left at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address. (Code Civ. Proc., § 415.20, subd. (b).) Luke Rottman’s process server left the summons and cross-complaint at the home of Michael Benincaso’s wife. (Michael Benincaso Decl., ¶ 3; Ex. 1.) However, this location is not Francesco Benincaso’s dwelling house, usual place of abode, usual place of business, or usual mailing address. (Francesco Benincaso Decl., ¶ 4; Michael Benincaso Decl., ¶ 5.) Thus, substituted service on Francesco Benincaso was defective.

CONCLUSION

             The court grants Specially Appearing Cross-Defendant’s motion to quash service of the summons and cross-complaint.

            Plaintiff shall give notice.