Judge: Mel Red Recana, Case: 23STCV31343, Date: 2024-05-20 Tentative Ruling
Case Number: 23STCV31343 Hearing Date: May 20, 2024 Dept: 45
Hearing
date: May 20, 2024
Moving
Party: Defendant Colenso Evelyn
Responding
Party: Plaintiff Brandon Blake
Motion
to Quash Service of Summons and Dismiss the Action
The Court
considered the moving papers.
The
motion is DENIED as MOOT.
Background
On December 22,
2023, Plaintiff Brandon Blake filed the instant Complaint against Defendant
Colenso Evelyn for 1) Libel; 2) Unlawful Business Practices violating Business
and Professions Code § 17200; and 3) Intentional Infliction of Emotional
Distress.
Defendant filed
an Answer to the Complaint on April 17, 2024.
On March 13,
2024, Defendant filed a Cross-Complaint against Plaintiff, Blake & Wang
P.A., and Saturn Harvest, LLC for 1) Breach of Contract; 2) Contract Fraud; 3)
Actual Fraud; 4) Disability Abuse; 5) Recoverin Defrauded Monies; 6)
Dissolution of Contracts.
On May 7, 2024,
Defendant filed the instant Motion to Quash Service of Summons and Dismiss the Action.
Plaintiff files in opposition.
Legal
Standard
“‘Service of
process, under longstanding tradition in our system of justice, is fundamental
to any procedural imposition on a named defendant.’ [Citation.]” (AO Alfa-Bank v. Yakovlev (2018)
21¿Cal.App.5th 189, 202.) “To establish
personal jurisdiction, compliance with statutory procedures for service of
process is essential.” (Kremerman v.
White (2021). 71 Cal.App.5th 358, 371.)
Defendant’s knowledge of the action does not dispense with statutory
requirements for service of summons.
(Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)
“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 move “to quash service of summons
on the ground of lack of jurisdiction of the court over him or her” that
results from lack of proper service.
(Code of Civ. Proc. § 418.10(a)(1).
A defendant has 30 days after the service of the summons to file a
responsive pleading. (Code Civ. Proc., §
412.20(a)(3).)
“When a
defendant challenges the court’s personal jurisdiction on the ground of
improper service of process ‘the burden is on the Plaintiffs to prove the
existence of jurisdiction by proving, inter alia, the facts requisite to an
effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.)
Discussion
Defendant prays
for an order quashing service of summons under CCP §§ 415.10 and 415.94 on the
grounds that the Court lacks jurisdiction over the Defendant because of
improper service of summons.
In opposition,
Plaintiff argues that Defendant’s motion is moot because he made a general
appearance by filing an answer to the Complaint. Plaintiff additionally
contends that Defendant failed to establish an agreement to arbitrate because
he was not a party to the contract provided by Defendant.
The Court finds
the motion improper as the Defendant made a general appearance in this matter.
Code of Civil Procedure § 410.50(a) provides that “a general appearance by a
party is equivalent to personal service of summons on such party.” (Code of
Civ. Proc. § 410.50(a).) Filing an answer on the merits constitutes a general
appearance. (Code of Civ. Proc. § 1014; see also Fireman's Fund Ins. Co. v.
Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) Here, Defendant
filed his Answer to the Complaint on April 17, 2024. (04/17/24 Answer.) Thus,
because Defendant has filed an Answer to the Complaint, he has made a general
appearance, and therefore, service has been properly effectuated. Moreover, in
so far as the Defendant brings a motion to dismiss based on a contractual
arbitration agreement, the motion is improper as the Defendant does not provide
the Court with any authority to provide him with relief.
Accordingly, the
Motion is therefore DENIED as MOOT.
It
is so ordered.
Dated:
_______________________
MEL RED RECANA
Judge of the
Superior Court