Judge: Joel R Wohlfeil, Case: 37-2023-00040411-CU-OR-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 24, 2024

04/26/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Other Real Property Motion to Quash (Civil) 37-2023-00040411-CU-OR-CTL HEATHER AUNE TRUSTEE OF THE AUNE FAMILY LIVING TRUST DATED APRIL 1 2014 VS MACK [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 03/08/2024

1. The Motion (ROA # 89) of Defendant Lindsey Mack ('Defendant') for an order quashing the service of summons and complaint of Plaintiff HEATHER AUNE, TRUSTEE OF THE AUNE FAMILY LIVING TRUST DATED APRIL 1, 2014 ('Plaintiff'), is DENIED.

On February 22, 2024, Defendant's default was entered. See ROA #87.

Defendant against whom a default has been entered is out of Court and is not entitled to take any further steps in the cause. Heathman v. Vant (1959) 172 Cal. App. 2d 639, 647.

She may not, until and unless the default is set aside, file pleadings, move for a new trial, or demand notice of subsequent proceedings. Id. Even if Defendant's default had not been entered, Defendant's previous filings (see ROA #s 48, 55 and 73) constitute a general appearance forfeiting the right to challenge defective service of a summons and complaint. See Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1147 (general appearance forfeits objections to defective service).

_____ 2. The Application (ROA # 95, 103) of Plaintiff HEATHER AUNE, in her capacity as Trustee of the AUNE FAMILY LIVING TRUST dated April 1, 2014 ('Plaintiff') for an order to convene an evidentiary hearing for the purpose of presenting evidence and seeking a Judgment on Plaintiff's Complaint, is GRANTED IN PART and will be HEARD IN PART.

The Court will schedule a proof up hearing on a date certain at the hearing of this Application.

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