Judge: Elaine W. Mandel, Case: 23SMCV06010, Date: 2024-08-27 Tentative Ruling

Case Number: 23SMCV06010    Hearing Date: August 27, 2024    Dept: P

The court has received the motion to quash.  An untimely opposition was filed on August 22, 2024.  Plaintiff claims that the opposition should be considered because the proof of service of the motion is false; in fact, the defense claims, the papers were never served.  The court has considered the opposition, but will give defendant an opportunity to submit a reply, as defendants have requested.

In the reply, defendant should be sure to consider (among other things) plaintiff’s position that the motion is moot because defendant moved to disqualify Judge Young pursuant to CCP section 170.6.  That challenge was made on April 22, 2024, and it was granted the next day.  Plaintiff might or might not be right about service of the complaint in general, but the court thinks that plaintiff has a point about the 170.6 challenge.  That act constituted a voluntary general appearance.  Generally speaking, if a defendant makes a general appearance, all defects of service are waived and jurisdiction is established.  The court also notes that on May 23, 2024, defendant’s prior motion to quash was denied for issues relating to service, but without prejudice to bringing a new motion to quash and set aside the default.  The court notes that plaintiff offered to stipulate to set aside the default if defendant was willing (1) to agree that service was complete as of that date and (2) answer within five days (the amount of time permitted normally in a UD case).  Defendant refused to accept that proposal.  In light of those proceedings and issues, the court stayed the writ of possession, but only until August 1, 2024.  Plaintiff moved for reconsideration of the court’s order, but the motion for reconsideration was denied on July 3, 2024.  On July 29, 2024, defendant moved again to quash the summons, which is the motion now before the court.

From this point forward, all service will be either electronically to the address that the court will obtain from the parties today or, if the parties will not stipulate to electronic service, then there will be a courtesy copy served electronically.  In the instant case, plaintiff contends that he did not receive the electronic service of defendant’s motion.  With the reply, defendant will submit the metadata from the email application that shows when the email was sent and delivered to the defense.  The nice thing about email is that there is an electronic metadata stamp that will prove when it was sent and delivered.  The failure to be able to produce that information will be deemed conclusive evidence that the email was never sent and that there was no service.  On the other hand, if that information is produced, then it would demonstrate conclusively to the court that plaintiff is being untruthful with the court regarding service.  This endless fighting about something as straightforward as proper service will end, and it will end now.

For now, this hearing is continued for one week to September 3, 2024, at 9 am.  Defendant will have until Thursday, August 29, 2024, at noon to file and serve the reply.  The current reply will therefore be superseded by the new reply and will not be considered further by the court.  Defendant should provide the court with a courtesy hard copy at the same time so that the court can be sure it will see it in time to consider the document before ruling.

The court will discuss the fee waiver issues in camera.