Judge: H. Jay Ford, III, Case: 24SMCV00630, Date: 2024-10-22 Tentative Ruling

Case Number: 24SMCV00630    Hearing Date: October 22, 2024    Dept: O

  Case Name:  Margaurita Management LLC v. Lam, et al.

SUBJECT:                 MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendants Brian Lam, Ji Wi, and Lina Chen

RESP. PARTY:         No Responsive Party as of 10-17-24

TENTATIVE RULING

            Defendants Brian Lam, Ji Wi, and Lina Chen’s Motion to Quash Service of Summons and Vacate Judgment is DENIED.  Defendants generally appeared by filing their answer, without an accompanying motion to quash, on 3-20-24, thus Defendant’s waived any right to object to service. Defendants do not provide any evidence sufficient for the Court to vacate the 6-28-24 Judgment pursuant to CCP § 473(b).

REASONING

Motions to Quash Service of Summons in an Unlawful Detainer (“UD”) case must be made withing 5 days of service of Complaint. (See Code Civ. Proc., §§ 1167.3, 418.10.) The Motion to Quash Service of Summons in a UD case May be filed simultaneously with demurrer, answer, or motion to strike, BUT cannot be filed after answering, striking, or demurring because defendant has appeared, thereby subjecting himself to the jurisdiction of the Court. (See Code Civ. Proc., §§ 418.10(e), 1014.)

Defendants Brian Lam, Ji Wi, and Lina Chen (collectively, “Defendants”) answered the Complaint on 3-20-24. (See 3-20-24 Answer.) Defendants filed their motion to quash on 8-7-24, after answering the Complaint, thus the Motion to Quash musth be denied pursuant to CCP §§ 418.10(e) and 1014.

Additionally, Defendants request the Court to set aside the judgment pursuant to CCP § 473(b) arguing service was not valid, and excusing their absence at the 6-24-24 Bench Trial due to “the prohibitive cost of such trial, as Defendants could not afford legal representation.” (See Lam, Wi, Chen Decl., p. 9:2–3.)

"The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Cal. Civ. Proc. Code § 473, subd. (b).) "Surprise" is defined as "some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656-57 (quotations omitted).) "Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances." (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) "The party seeking relief under section 473 must also be diligent . . . in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken." (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) “Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue." (Ibid.)

            Defendants answered the Complaint on 3-20-24, without simultaneously filing a motion to quash service of summons, thus waiving any argument that service was not properly effected. Defendants answer thus counts as a general appearance which waives objections to defective service. (See Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1147 [“A defendant has a right to demand that process be issued against him in the manner provided by law, but if process is not so issued and he appears generally without making objection, such appearance, being the purpose of the process, confers jurisdiction of the person and the court is empowered to act in the premises”].)

            Additionally, the Defendants claim of financial inability to hire an attorney does not constitute excusable neglect under CCP § 473(b). Defendants were still able to attend the trial in person as self-represented litigants, which they failed to do, obtain “a waiver of the fee by petition in forma pauperis, . . . consult[] attorneys in legal aid offices or proceed[] in propria persona.” (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 805–806; see also McClain v. Kissler (2019) 39 Cal.App.5th 399, 415 [“Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.... The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded”]; Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [“when [defendant] asserts that he was entitled to a set aside because of a mistake of law, what he really means is not that he made a mistake of law when he attempted to put on his case at trial, but that he made a mistake in judgment when he chose to act as his own attorney”].)