Judge: Lisa K. Sepe-Wiesenfeld, Case: 23STCV00018, Date: 2023-11-30 Tentative Ruling

Case Number: 23STCV00018    Hearing Date: November 30, 2023    Dept: N

TENTATIVE RULING

Plaintiff/Cross-Defendant Arman Solimani’s Motion to Quash Service of Summons and Cross-Complaint is DENIED.

Plaintiff/Cross-Defendant Arman Solimani shall file a responsive pleading within 15 days of entry of this order. (Code Civ. Proc., § 418.10, subd. (b).)

Plaintiff/Cross-Defendant Arman Solimani to give notice.

REASONING

Code of Civil Procedure section 418.10, subdivision (a)(1), provides that a defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him. Plaintiff/Cross-Defendant Arman Solimani (“Plaintiff”) moves to quash service of the summons and cross-complaint upon him on the ground that Defendants/Cross-Complainants Yigal Hay and Lillian Hay (“Defendants”) failed to serve Plaintiff in a code-complaint manner.

Plaintiff argues that the caption of the cross-complaint was defective, but this argument does not go to whether Plaintiff was properly served. Insofar as Plaintiff takes issue with the service itself, the proof of service filed on the docket on April 7, 2023, shows that Plaintiff was purportedly served with Defendants’ cross-complaint by mail to his attorney on April 7, 2023. While defense counsel represents that the cross-complaint was also served by email on this date, this is not stated in the proof of service, but it is stated in the proof of service attached to the cross-complaint filed on April 6, 2023, which also indicates that Plaintiff was served by mail to his attorney.

Code of Civil Procedure section 428.60 makes clear that a cross-complaint can be served by mail upon the attorney for any party who has already appeared in the action; here, Plaintiff has already appeared in this action. Code of Civil Procedure section 1010.6, subdivision (a)(3)(A), provides that a party may be served by electronic service where a document may be served by mail. It follows that service was proper because counsel was properly served by electronic service even if counsel’s office address changed. While the Court notes that the proof of service filed on April 7, 2023, indicates that it should not be used for service of the summons and complaint, it is the proof of service filed on April 6, 2023, with the cross-complaint which informs the Court’s ruling herein.

Finally, Plaintiff cannot claim there is no personal jurisdiction over him where he made a general appearance in this action by filing his initial complaint. (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8 [“By generally appearing, a defendant relinquishes all objections based on lack of personal jurisdiction”].) Accordingly, Plaintiff/Cross-Defendant Arman Solimani’s Motion to Quash Service of Summons and Cross-Complaint is DENIED. Plaintiff/Cross-Defendant Arman Solimani shall file a responsive pleading within 15 days of entry of this order. (Code Civ. Proc., § 418.10, subd. (b).)

The Court notes that Plaintiff’s counsel has named the assigned judge in his caption as a “disqualified” judge despite the order dated April 13, 2023, striking any purported statement of disqualification. Rule 3.3(a)(1) of the Professional Rules of Conduct provides that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal.” Plaintiff’s counsel is hereby ordered to discontinue making any misrepresentations in the case caption that the assigned judge has been disqualified from presiding over this action.