Judge: Maurice A. Leiter, Case: 20STCV44063, Date: 2022-12-13 Tentative Ruling

Case Number: 20STCV44063    Hearing Date: December 13, 2022    Dept: 54

Hearing Date: December 13, 2022

Department 54, Judge Maurice A. Leiter

Motion to Quash Service of Summons

Moving Party: Plaintiff/Cross-Defendant Celia Reyes

Responding Party: None

T/R:    CROSS-DEFENDANT’S MOTION TO QUASH IS GRANTED.

            CROSS-DEFENDANT to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers. No opposition has been received.

BACKGROUND

            On January 21, 2022, Plaintiffs Celia Reyes, et al. filed the operative first amended complaint against Defendants Shlomo Botach and Botach Management, LLC, asserting causes of action for (1) fraud; (2) UCL violations; (3) violation of LARSO; (4) negligence; (5) breach of implied warranty of habitability; (6) breach of the covenant of quiet enjoyment; and (7) intentional infliction of emotional distress.

Plaintiffs were tenants of Defendants. At the beginning of their tenancy, Plaintiffs resided in the “Westmoreland” unit owned by Defendants. In 2015, the City ordered Plaintiffs to vacate because the building was hazardous. Plaintiffs moved into the “10^th Ave” property. Plaintiffs allege that Defendants represented that the relocation to 10^th Ave was temporary, and Plaintiffs would be able to move back into Westmoreland once repairs were completed. Five years later, Plaintiffs still resided at 10^th Ave, and Defendants served a 90-day notice of termination of tenancy. Plaintiffs allege Defendants failed to keep the units in habitable condition and violated LARSO when Defendants ended Plaintiffs’ tenancy.

ANALYSIS

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, 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.”  (CCP § 418.10(a)(1).)  “When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.)

Plaintiff/Cross-Defendant Celia Reyes moves to quash service of summons of the cross-complaint. Cross-Defendant asserts that Cross-Complainant Botach Management, LLC served the cross-complaint on a minor in violation of CCP § 415.20, presumably to effect substitute service on Cross-Defendant.

Cross-Complainant has not filed a proof of service of the cross-complaint and serving a minor is not a permitted manner of service. The Court will grant Cross-Defendant’s motion on these grounds. However, the Court notes that a cross-complaint need not be served in the same manner as a complaint if the cross-defendant already has appeared in the action. (CCP § 428.60.)

            Cross-Defendant’s motion is GRANTED.