Judge: Melvin D. Sandvig, Case: 23CHCV03744, Date: 2025-03-18 Tentative Ruling

Case Number: 23CHCV03744    Hearing Date: March 18, 2025    Dept: F47

Dept. F47

Date: 3/18/25

Case #23CHCV03744

MOTION TO QUASH SERVICE OF SUMMONS

Motion filed on 12/17/24.

MOVING PARTY: Defendants Edwin Gramajo and Hector Gramajo

RESPONDING PARTY: Plaintiff Green Bay Properties, LP

NOTICE: ok

RELIEF REQUESTED: An order quashing service of summons and complaint on Defendants.

RULING: The denied as moot.   

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 12/8/23, Plaintiff Green Bay Properties, LP (Plaintiff) filed this commercial unlawful detainer action against Defendants Hector Gramajo dba Swiss Cleaners (Hector) and Edwin Gramajo dba Swiss Cleaners (Edwin).  On 2/20/24, Plaintiff filed a First Amended Complaint regarding unlawful detainer.  Before trial, Defendants vacated the property; therefore, possession is no longer at issue.   (See 10/14/24 Minute Order).  On 11/13/24, Plaintiff filed the operative Second Amended Complaint against Defendants for damages for breach of contract and served same on Defendants’ counsel by email. 

On 12/17/24, Defendants filed and served the instant motion seeking an order quashing service of summons and complaint on Defendants.  Plaintiff has opposed the motion.  Defendants have not filed a reply to the opposition. 

ANALYSIS

This motion addresses the 11/13/24 email service of the Second Amended Complaint on defense counsel on the ground that such service fails to comply with Civil Code 1952.3 which provides, in relevant part:

“(a) Except as provided in subdivisions (b) and (c), if the lessor brings an unlawful detainer proceeding and possession of the property is no longer in issue because possession of the property has been delivered to the lessor before trial or, if there is no trial, before judgment is entered, the case becomes an ordinary civil action in which:

(1) The lessor may obtain any relief to which he is entitled, including, where applicable, relief authorized by Section 1951.1; but, if the lessor seeks to recover damages described in paragraph (3) of subdivision (a) of Section 1951.2 or any other damages not recoverable in the unlawful detainer proceeding, the lessor shall first amend the complaint pursuant to Section 472 or 473 of the Code of Civil Procedure so that possession of the property is no longer in issue and to state a claim for such damages and shall serve a copy of the amended complaint on the defendant in the same manner as a copy of a summons and original complaint is served.”

(emphasis added)

On 2/5/25, after this motion was filed and served, Plaintiff filed a Proof of Service showing that Defendant Edwin Gramajo was served with the Summons on Second Amended Complaint by Substituted Service on 1/8/25 with subsequent mailing the same day.  (See Proof of Service filed 2/5/25).  On 2/20/25, Plaintiff filed a Proof of Service showing Defendant Hector Gramajo was personally served with the Summons on Second Amended Complaint on 2/19/25.  (See Proof of Service filed 2/20/25).  The opposition to the motion focuses on these subsequent services on Defendants which occurred after the motion was filed.  (See Opposition, generally; Navarro Decl., Ex.1). 

As noted above, Defendants have not filed a reply to the opposition and have not addressed the proofs of service filed in February of 2025.

The Court finds that the service of the Summons on Second Amended Complaint on Defendants after the filing of this motion, which is the subject of the proofs of service filed on 2/5/25 and 2/20/25, renders this motion moot.    

CONCLUSION

The motion is denied as moot.