Judge: Michael P. Linfield, Case: 23STCP04074, Date: 2024-03-05 Tentative Ruling
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Case Number: 23STCP04074 Hearing Date: March 5, 2024 Dept: 34
SUBJECT: Motion to 1) Quash Service of Notice of
Entry of Sister State Judgment [and] 2) Recall and Quash Writs of Execution and
Abstracts of Judgment
Moving Party: Specially-Appearing
Defendant Jeannie Long
Resp. Party: Plaintiff Fidelity National Title Insurance
Company
The Motion to Quash is GRANTED in part.
The Proof of Service filed November 15, 2023 is QUASHED.
The Motion to Quash is DENIED as unripe as to all other issues.
BACKGROUND:
On October 16, 2023, Plaintiff Fidelity National Title
Insurance Company filed its Application for Entry of Judgment on Sister-State
Judgment against Defendant Jeannie Long.
On November 3, 2023, by request of Plaintiff, the Clerk’s
Office entered Judgment Based on Sister-State Judgment.
On November 3, 2023, the Clerk’s Office issued Notice of
Entry of Judgment on Sister-State Judgment.
On November 15, 2023, Plaintiff filed Proof of Service.
On January 12, 2024, Specially-Appearing Defendant filed her
Motion to 1) Quash Service of Notice of Entry of Sister State Judgment [and] 2)
Recall and Quash Writs of Execution and Abstracts of Judgment (“Motion to
Quash”). In support of the Motion to Quash, Specially-Appearing Defendant
concurrently filed: (1) Declaration of Jeannie Long; (2) Declaration of Michele
Alexander; and (3) Request for Judicial Notice.
On February 21, 2024, Plaintiff filed its Opposition to
the Motion to Quash.
No reply or other response has been filed regarding the
Motion to Quash.
ANALYSIS:
I.
Request
for Judicial Notice
Specially-Appearing Defendant requests that the Court take judicial
notice of a proof of service filed in this matter.
The Court DENIES as superfluous judicial
notice to this item. Any party that wishes to draw the Court’s attention to an
item filed in this action may simply cite directly to the document by execution
and filing date. (See Cal. Rules of Court, rule 3.1110(d).)
II.
Legal
Standard
“A summons may be
served by personal delivery of a copy of the summons and of the complaint to
the person to be served. Service of a summons in this manner is deemed complete
at the time of such delivery. The date upon which personal delivery is made
shall be entered on or affixed to the face of the copy of the summons at the time
of its delivery. However, service of a summons without such date shall be valid
and effective.” (Code Civ. Proc., § 415.10.)
“In lieu of
personal delivery of a copy of the summons and complaint to the person to be
served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a
summons may be served by leaving a copy of the summons and complaint during
usual office hours in his or her office or, if no physical address is known, at
his or her usual mailing address, other than a United States Postal Service
post office box, with the person who is apparently in charge thereof, and by
thereafter mailing a copy of the summons and complaint by first-class mail,
postage prepaid to the person to be served at the place where a copy of the
summons and complaint were left. When service is effected by leaving a copy of
the summons and complaint at a mailing address, it shall be left with a person
at least 18 years of age, who shall be informed of the contents thereof.
Service of a summons in this manner is deemed complete on the 10th day after
the mailing.” (Code Civ. Proc., § 415.20, subd. (a).)
“If a copy of the
summons and complaint cannot with reasonable diligence be personally delivered
to the person to be served, as specified in Section 416.60, 416.70, 416.80, or
416.90, a summons may be served by leaving a copy of the summons and complaint
at the person’s dwelling house, usual place of abode, usual place of business,
or usual mailing address other than a United States Postal Service post office
box, in the presence of a competent member of the household or a person
apparently in charge of his or her office, place of business, or usual mailing
address other than a United States Postal Service post office box, at least 18
years of age, who shall be informed of the contents thereof, and by thereafter
mailing a copy of the summons and of the complaint by first-class mail, postage
prepaid to the person to be served at the place where a copy of the summons and
complaint were left. Service of a summons in this manner is deemed complete on
the 10th day after the mailing.” (Code Civ. Proc., § 415.20, subd. (b).)
“A summons may be
served by mail as provided in this section. A copy of the summons and of the
complaint shall be mailed (by first-class mail or airmail, postage prepaid) to
the person to be served, together with two copies of the notice and
acknowledgment provided for in subdivision (b) and a return envelope, postage
prepaid, addressed to the sender.” (Code Civ. Proc., § 415.30, subd. (a).)
“Service of a
summons pursuant to this section is deemed complete on the date a written
acknowledgement of receipt of summons is executed, if such acknowledgement
thereafter is returned to the sender.” (Code Civ. Proc., § 415.30, subd. (c).)
“A summons may be
served on a person outside this state in any manner provided by this article or
by sending a copy of the summons and of the complaint to the person to be
served by first-class mail, postage prepaid, requiring a return receipt.
Service of a summons by this form of mail is deemed complete on the 10th day
after such mailing.” (Code Civ. Proc., § 415.40.)
“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, subd. (a)(1).)
III.
Discussion
A. The Parties’ Arguments
Specially-Appearing Defendant requests that the Court: (1) quash
service of summons as to Specially-Appearing Defendant; and (2) recall and
quash all writs of execution and abstracts of judgment that may have been
issued and order the return of all property levied pursuant to the judgment.
(Motion to Quash, p. 8:13–16.)
Specially-Appearing Defendant argues: (1) that the proof of service of
summons is defective and invalid because Plaintiff did not serve
Specially-Appearing Defendant in compliance with Code of Civil Procedure
section 415.20, subdivision (b); (2) that Specially-Appearing Defendant has
rebutted the presumption of validity of the proof of service through sworn
declarations and supporting exhibits; and (3) that the Court should grant the
relief requested. (Motion to Quash, pp. 4:7–8, 5:21–23, 6:16–17, 7:6–7.)
Plaintiff opposes the Motion to Quash, arguing: (1) that the only
ground to set aside a sister-state judgment is when the defendant is not given
reasonable notice and opportunity to be heard in the state of rendition; and
(2) that due process of law does not require actual notice of the pending
action. (Opposition, pp. 3:7–9, 4:8–9.)
B. Discussion
On October 16, 2023,
Plaintiff Fidelity National Title Insurance Company filed its Application for
Entry of Judgment on Sister-State Judgment against Defendant Jeannie Long.
On November 3, 2023,
by request of Plaintiff, the Clerk’s Office entered Judgment Based on
Sister-State Judgment.
On November 3, 2023,
the Clerk’s Office issued Notice of Entry of Judgment on Sister-State Judgment.
On November 15, 2023,
Plaintiff filed Proof of Service.
The reason the date of the Proof of Service matters is because the
Notice of Entry of Judgment on Sister-State Judgment includes the following
provision:
“A
sister-state judgment has been entered against you in a California court.
Unless you file a motion to vacate the judgment in this court within 30 DAYS
after service of this notice, this judgment will be final.
“This
court may order that a writ of execution or other enforcement may issue. Your
wages, money, and property could be taken without further warning from the
court.
“If
enforcement procedures have already been issued, the property levied on will
not be distributed until 30 days after you are served with this notice.”
(Notice of Entry of
Judgment on Sister-State Judgment, Item 3.)
“In the absence
of a voluntary submission to the authority of the court, compliance with the
statutes governing service of process is essential to establish that court's
personal jurisdiction over a defendant. (§ 410.50.) When a defendant
challenges that jurisdiction by bringing a motion to quash, the burden is on
the plaintiff to prove the existence of jurisdiction by proving, inter alia,
the facts requisite to an effective service.” (Dill v. Berquist Constr. Co. (1994)
24 Cal.App.4th 1426, 1439–1440, citations omitted.)
Upon a review of the evidence submitted to the Court, it appears that
no service actually occurred because nobody was at Specially-Appearing Defendant’s
home when service was attempted there. (Decl. Long, ¶¶ 3–7 and Exhs. A–B; Decl.
Alexander, ¶¶ 2–5 and Exh. A.)
Plaintiff makes two notable statements in its Opposition.
First, Plaintiff claims that it “has just received a response that
[opposing] counsel has been authorized to accept service of process via notice
and acknowledgement of receipt upon the execution of a stipulation quashing the
previous service attempt.” (Opposition, p. 2:28, 3:1–2.)
Second, Plaintiff claims that it “is
willing to grant [Specially-Appearing Defendant] the standard thirty (30) days
or even forty (40 — for substitute service) to respond to the entry of the
Sister-State Judgment. [Plaintiff] does not have an issued abstract of judgment
or writ of execution so the risk of enforcement is not an issue at the present
time. This would be a fair and equitable alternative to service by publication
or a hide-and-seek situation.” (Opposition, p. 5:17–21.)
Given that service appears not to have
occurred, the Court will quash the proof of service. Further, given that no
abstract of judgment or writ of execution has issued (and, presumably, no
property has been levied according to such abstracts of judgments or writs of
execution), the rest of the requested relief is unripe.
IV.
Conclusion
The Motion to Quash is GRANTED in part.
The Proof of Service filed November 15, 2023 is QUASHED.
The Motion to Quash is DENIED as unripe as to all other issues.