Superior Court of California 

County of Los Angeles 

Department 78 

 

MONTANO INVESTMENTS, INC., 

Plaintiff;  

vs. 

USA REAL ESTATE INVESTMENT SERVICES, INC, et al., 

Defendants. Case No.: 22STCV04061

DEFENDANT MENDEZ’S MOTION TO QUASH SERVICE OF SUMMONS

Defendant Mendez’s motion to quash service of summons is GRANTED.

Moving party to give notice.

FACTUAL BACKGROUND   

This is an action for malicious prosecution, to quiet title, fraud, rescission, unlawful and unfair business practices, and unjust enrichment. Plaintiff also seeks an equitable set aside of foreclosure. Plaintiff Montano Investments alleges that Defendant Marc Mendez defrauded Plaintiff of its property by forging its president’s signature on a promissory note and fraudulently foreclosing on the subject property.

PROCEDURAL HISTORY 

Plaintiff filed its complaint against Defendants USA Real Estate Investment Services, Inc. and Marc Mendez on February 2, 2022.

On February 3, 2022, Plaintiff filed Doe Amendments naming Anchor Finance, LLC, California TD Specialists, Flues and Flagstone LLC, Ismael Pereda, Corevest Loans, LLC, and Lima Loans LLC as defendants in this action.

On August 4, 2022, Plaintiff filed a First Amended Complaint.

On August 31, 2022, the Court consolidated this case with cases 22STUD00257 and 22STUD00250.

On February 1, 2023, Plaintiff filed its proof of service as to Defendant Mendez.

On July 20, 2023, Defendant Marc Mendez filed the instant motion to quash service of summons.

On July 25, 2023, Plaintiff filed its opposition.

On August 9, 2023, Mendez filed his reply.

DISCUSSION 

Defendant Marc Mendez moves to quash service of summons on the grounds that service was defective. 

“A defendant . . . 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(a).) The motion must be filed on or before the last day on which the defendant must plead or within any further time that the court may for good cause allow. (Id.)

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Code Civ. Proc. section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail…to the person to be served at the place where a copy of the summons and complaint were left . . . .” (Code Civ. Proc., section 415.20(b).) Service of a summons in this matter is deemed complete on the 10th day after the mailing. (Id.)

A summons may be served on a person outside the state in any manner provided by Title 5, Article 3 of the Code of Civil Procedure or by sending a copy of the summons and complaint to the person to be serv ed by first-class mail, postage prepaid, requiring a return receipt. (Code Civ. Proc., section 415.40.)

Here, Plaintiff’s proof of service filed February 1, 2023 shows that Plaintiff served Mendez via substituted service by leaving the documents with a receptionist at 633 W. 5th St., STE 2600, Los Angeles, CA 90071 and mailing the documents to the same address on December 7, 2022. 

Mendez testifies in his declaration and a supplemental declaration submitted on reply that 633 W. 5th St., STE 2600, Los Angeles, CA 90071 was a business address that he has not used for five years. (Mendez Reply Decl., ¶4.) Additionally, Plaintiff’s counsel testified in her declaration of due diligence that Mendez did not have an office in the suite. (Delman Decl., ¶6.) The evidence shows that the 633 W. 5th St. address is not Mendez’s usual place of business, nor has he received mail there for at least five years. Therefore, service on this address was defective.

Plaintiff’s proof of service also states that Plaintiff mailed the papers to Marc Mendez aka Marcus Mendez, c/o Blackstone Holdings, 750 W. 7th St. #81140, which Plaintiff confirmed was a post office box operated by the United States Postal Service. (Delman Decl., ¶3.)

If the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision(d) of Section 17538.5 of the Business and Professions Code. (Code Civ. Proc., section 415.20(c).) Every person receiving a private mailbox receiving service from a commercial mail receiving agency (“CMRA”) shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement. (Bus. & Prof. Code, section 17538.5(d).) Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer's mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service on the CMRA shall then be deemed perfected 10 days after the date of mailing. (Id.)

Here, Plaintiff attempted to locate an address for Mendez by performing a skip trace using a Trans Union skip trace service and located four addresses, two in Texas and two in California. (Delman Decl., ¶2.) After requesting confirmation from the United States Postal Service as to whether the addresses were current, Plaintiff’s counsel received letters showing the two Texas addresses were no longer current. (Id., ¶3.) The letters showed one forwarding address to Blackstone Holdings 750 W. 7th St. #81140, Los Angeles, CA 90017. (Id.) 

The evidence shows that the Texas addresses and the 633 W. 5th St. address are no longer current. Additionally, Mendez testifies that he is a resident of Texas. (Mendez Decl., ¶1.) Thus, the evidence shows that the only address reasonably known for Mendez is 750 W. 7th St. #81140, Los Angeles, CA 90017, a post office box operated by the United States Postal Service. However, Plaintiff’s evidence does not establish that the requirements of Section17538.5 of the Business and Professions Code have been met. Because Mendez is challenging the validity of service, Plaintiff has the burden of proving service was effective. Although Plaintiff argues that the motion should be denied because Mendez’s counsel has actual notice of this action, the Court lacks jurisdiction over Mendez unless there has been proper service of process. Therefore, the motion is granted.

DATED: August 16, 2023 

____________________________

Hon. Jill Feeney 

Judge of the Superior Court