Judge: Michael P. Linfield, Case: 20STCV22550, Date: 2022-10-31 Tentative Ruling
Case Number: 20STCV22550 Hearing Date: October 31, 2022 Dept: 34
SUBJECT: Application and Order for Appearance
and Examination
Moving Party: Judgment Creditor Jack Benudiz
Resp. Party: Judgment
Debtor Danny Siag
SUBJECT: Motion to Quash Service of Order for
Appearance and to Recall Bench Warrant
Moving Party: Judgment Debtor Danny Siag
Resp. Party: Judgment
Creditor Jack Benudiz
The Motion to Quash Service of
Order for Appearance and to Recall Bench Warrant is DENIED.
The Application for Order of
Appearance and Examination is GRANTED.
BACKGROUND:
On August 6, 2020,
Defendant filed his Answer.
On August 6, 26, 27,
and 30, 2021, the Parties’ appeared before the Court at Trial. On August 30,
2021, the Court found in favor of Defendant and against Plaintiff on all causes
of action in the Complaint.
On September 30,
2021, the Court entered Judgment according to its prior findings.
On January 4, 2022,
the Court entered Amended Judgment, ordering that Defendant (now Judgment
Creditor) shall recover from Plaintiff (now Judgment Debtor) in the total
amount of $38,995.34.
On May 26, 2022,
Judgment Creditor filed his Application and Order for Appearance and
Examination against Judgment Debtor (“Application”).
On July 20, 2022,
Judgment Creditor filed his Proof of Service.
On August 16, 2022,
Judgment Debtor failed to appear at the hearing set for his appearance and
examination. The Court ordered and held a bench warrant until October 31, 2022.
The Court also set bail in the amount of $5,000.00 and continued the hearing
until October 31, 2022.
On October 6, 2022,
Judgment Debtor, who is now in propria persona, filed his Motion to
Quash Service of Order for Appearance and to Recall Bench Warrant (“Motion”).
On October 18, 2022,
Judgment Creditor filed his Opposition to the Motion to Quash (“Opposition”).
Judgment Debtor has
not filed a reply or other response to the Judgment Creditor’s Opposition.
ANALYSIS:
I.
Application
and Order for Appearance and Examination
A.
Legal
Standard
“Upon ex parte application by a
judgment creditor who has a money judgment and proof by the judgment creditor
by affidavit or otherwise to the satisfaction of the proper court that a third
person has possession or control of property in which the judgment debtor has
an interest or is indebted to the judgment debtor in an amount exceeding two
hundred fifty dollars ($250), the court shall make an order directing the third
person to appear before the court, or before a referee appointed by the court,
at a time and place specified in the order, to answer concerning such property
or debt. The affidavit in support of the judgment creditor's application may be
based on the affiant's information and belief.” (Code Civ. Proc., § 708.120,
subd. (a).)
“Not less than 10 days prior to the
date set for examination, a copy of the order shall be: (1) Served personally
to the third person[;] (2) Served personally or by mail on the judgment
debtor.” (Code Civ. Proc., § 708.120, subd. (b).)
B. Discussion
Judgment Creditor applies for an order for Judgment Debtor to
appear for examination. (Application, ¶¶ 1, 4, 5.a.)
The Court finds that Judgment
Debtor was properly served by personal service on July 14, 2022. (Proof of
Service, Items 5.b., 6.a.)
The Court
considers the Motion to Quash prior to issuing its ruling on the Application.
II.
Motion to
Quash
A.
Legal
Standard
“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.” (Code Civ. Proc., § 418.10(a).)
“The motion to quash must be made . . . on or before the last day to plead ‘or
within any further time that the court for good cause may allow.’” (Edmon &
Karnow, Cal. Prac. Guide: Civ. Proc.
Before Trial (The Rutter Group 2017) ¶ 4:420; Code Civ. Proc. § 418.10(a);
see Marriage of Obrecht (2016) 245 Cal.App.4th
1, 16-17 [where motion to quash was filed after defendant’s time to plead
expired, but plaintiff made no objection and court addressed motion on its
merits, motion to quash was deemed timely brought within time allowed by the
court].)
Complainants have the initial
burden to evidence valid statutory service of a summons and complaint. (Dill
v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor
Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794; Edmon & Karnow, supra, at ¶ 4:428.) “‘[C]ompliance with
the statutory procedures for service of process is essential to establish
personal jurisdiction.’ ” (Ellard v. Conway (2001) 94 Cal.App.4th 540,
544.) A filed proof of service creates a rebuttable presumption that service
was proper, if it complies with applicable statutory requirements. (Floveyor
Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 795.)
When a defendant moves to quash
service of the summons and complaint, the plaintiff has “the burden of proving
the facts that did give the court jurisdiction, that is the facts requisite to
an effective service.” (Coulston v.
Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a
party if there has not been proper service of process.” (See Ruttenberg v. Ruttenberg (1997) 53
Cal.App.4th 801, 808.)
There are four methods for service
of process within California, including personal service, substitute service,
service by mail with acknowledgement of receipt, and service by publication.
(See Code Civ. Proc., § 415.10 et seq.) To personally serve a corporation, service must be made
upon "the person designated as agent for service of process" or upon
"the president, chief executive officer, or other head of the corporation,
a vice president, a secretary or assistant secretary, a treasurer or assistant
treasurer, a controller or chief financial officer, a general manager, or a
person authorized by the corporation to receive service of process." (Code
Civ. Proc., § 416.10, subds. (a), (b).) To serve either a corporation or an
individual by substituted service, a copy of the summons and complaint must be
left at the recipient's usual place of business or usual residence and also mailed
to the recipient at the place where the copies were left. (Code Civ. Proc., §
415.20, subds. (a), (b).)
B.
Discussion
Judgment Debtor moves to quash
the service of summons on the grounds that he “was never served with the
underlying order for examination.” (Motion, p. 3:15; Decl. Siag, ¶ 4.) Judgment
Debtor claims to have been “made aware of the order for appearance and
examination on September 19, 2022.” (Motion, p. 3:16; Decl. Siag, ¶ 2.)
Judgment Creditor opposes the
Motion, arguing: (1) that Judgment Debtor has not offered any explanation why
the Proof of Service is inadequate; (2) that Judgment Debtor has not presented
an alternative explanation or denied that served was made at his residence; (3)
that Judgment Debtor was in fact served; and (4) that Judgment Debtor actually
sought to evade service. (Opposition, p. 2:5–11.)
Judgment
Creditor filed a Declaration of Kevin Caldwell in support of his Opposition.
Among other things, Mr. Caldwell avers: (1) that he is a licensed private
investigator; (2) that he first visited Judgment Debtor’s residence on July 2,
2022 and did not observe anyone at home; (3) that he then visited Judgment
Debtor’s residence twice on July 9, 2022; (4) that he confirmed the residence
was Judgment Debtor’s by reviewing a Comp Report, running license plates,
visiting other addresses associated with Judgment Debtor, and finally observing
a male adult who fit the general description provided to Mr. Caldwell of
Judgment Debtor; and (5) that he attempted to serve Judgment Debtor, but
Judgment Debtor closed the door on Mr. Caldwell, to which Mr. Caldwell
announced loudly that he had legal documents for Judgment Debtor, talked with
an adult woman at the residence a few minutes later, left the documents for
Judgment Debtor, announced that Judgment Debtor had been served, and noticed
about 15 minutes later that the paperwork was no longer where he left it.
(Opposition, Caldwell Decl., ¶¶ 2, 5–10.)
Judgment
Debtor has not filed a reply or other response to the Judgment Creditor’s Opposition.
This
is not the first time in this litigation that Judgment Debtor has decided not
to appear and given apparently false excuses to the Court. Judgment Debtor
failed to appear at the Final Status Conference on July 13, 2021, ostensibly because
he had been diagnosed with COVID-19. (Minute Order dated July 22, 2021.) The
Court requested proof of the diagnosis, and when none arrived, the Court
sanctioned Judgment Debtor’s then-attorney in the amount of $999.00. (Minute
Order dated August 2, 2021.)
The
Court finds that Judgment Creditor has met his burden here. The Court finds
that Judgment Debtor was in fact served on July 9, 2022 with the Application.
III.
Conclusion
The Court
DENIES Judgment Debtor’s Motion to Quash Service of Order for Appearance and to
Recall Bench Warrant.
The Court
GRANTS Judgment Creditor’s Application for Order of Appearance and
Examination.