Judge: Mark H. Epstein, Case: 22SMCV02762, Date: 2023-02-27 Tentative Ruling

Case Number: 22SMCV02762    Hearing Date: February 27, 2023    Dept: R

The case is here for a final status conference. 

The court gave the final status conference order on February 1, 2023.  While that was shortly before trial, that was in part due to the requested short time frame that plaintiff request consistent with the UD statutes.  On February 24, 2023, plaintiff filed the following documents: (1) Exhibit List (4 witnesses for a total of 1 hour of direct testimony); (2) Two Exhibit Lists (total of 14 exhibits).  No trial brief was filed.  Defendant filed nothing.  Plaintiff’s counsel also filed a declaration stating that she had attempted to meet and confer with defendant and had sent over drafts of the FSC materials but defendant had not responded.

On February 3, 2023, defendant filed a motion to quash service of the summons.  The motion was based on the claim that he had never received the summons or the amended complaint.  And he also claims he was not properly served with the 3 day notice to pay or quit.  The motion to quash is invalid as the notice provides neither a date nor a time for the hearing.  Even putting that to one side, the motion to quash is essentially waived by defendant’s general appearance in this action.  On December 29, 2022, defendant filed what purports to be an answer and cross-complaint.  That is a general appearance and waives any service defects regarding the complaint.  While service of the complaint may be waived due to the general appearance, that does not moot the alleged defective service of the 3 day notice.  If that was not served properly then the action cannot go forward.  That, however, is not something that can be addressed by a motion to quash.

At the moment, the court is left with an uncooperative defendant.  The case will remain on the trial calendar for March 6, 2023 at 10:30, but will trail some other matters that might be pending on that day.  Pursuant to the local rules, defendant will be precluded from calling any witness at trial other than himself.  Defendant may cross-examine any witness plaintiff calls.  Defendant is precluded from introducing any exhibits but may rely on any exhibits plaintiff introduces and may object to any exhibit plaintiff attempts to introduce on any legal grounds applicable.