Judge: Mark H. Epstein, Case: 24SMCV03537, Date: 2024-12-09 Tentative Ruling

Case Number: 24SMCV03537    Hearing Date: December 9, 2024    Dept: I

This is a motion to strike a declaration.  It stems from an action brought by plaintiff against defendants Irvin and Zytko.  On October 25, 2024, defendant Irvin filed a declaration attaching certain emails objecting to service.  Plaintiff moves to strike those declarations as improper.  Plaintiff contends that Irvin is playing games regarding service.  The court takes no immediate position on the service issue, but agrees that filing a declaration is no way to attack it.  An attack must by made via a motion to quash, which was not done here.  Plaintiff also argues that because Irvin filed a declaration, Irvin has made a general appearance. 

The court strongly urges the parties to take a step back.  Notwithstanding the multiple declarations by Irvin, plaintiff is not acting as a scofflaw worthy of the derision heaped upon plaintiff by Irvin.  At the same time, it is fair to say that plaintiff has hardly been nice to Irvin.  The court suggests the following.  It is plain that Irvin (and Zytko) have actual knowledge of this case.  The court proposes all parties agreeing that service is effective as of today.  Although Zytko likely will not be at the hearing, the court’s hope would be that Zytko agrees to this proposal.  Defendants will have 30 days from today to answer or otherwise respond to the complaint.  The purpose of service has been fulfilled: defendants know of the lawsuit and its basis.  (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135.)  The court is not saying whether the declaration by Irvin constitutes a general appearance—which it might—at least as to the declarant.  But wouldn’t it make more sense just to go forward to the merits?

If, as Irvin states, the lawsuit is without merit and defendants owe no money under the lease, then they should move to discovery and the merits so that they can obtain a formal judgment so stating.  On the other hand, if defendants are in violation, then plaintiff is entitled to a judgment and all that delay will do is to give plaintiff prejudgment interest at 10% per year.  And if the problem is that plaintiff is trying to win by default without giving any real notice (as Irvin seems to claim), that effort has been foiled, for notice has been given and defendants are aware of the suit and able to defend themselves.

The parties will find this court to be an inhospitable environment if things continue as they are.  All parties would be well advised not to press the issue but rather to go forward as the law intends.  If they do so, they will find that the court is willing to scrupulously enforce everyone’s rights, ensure that due process is afforded to all, and do its level best to end the case with a just result.