Judge: Michael Shultz, Case: 24CMUD01380, Date: 2024-10-18 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 24CMUD01380 Hearing Date: October 18, 2024 Dept: A
24CMUD01380
Kamille Nickelson v. Katrese Nickelson, Honor Lee Nickelson
[TENTATIVE] ORDER
I.
BACKGROUND FACTS
This is an unlawful detainer
action arising from Defendant’s alleged unauthorized occupancy of Plaintiff’s
residence. Plaintiff dismissed Defendant, Honor L. Nickelson, (“Honor”) on
October 2, 2024.
Defendant, Katrese Nickelson (“Katrese”)
moves to quash service of summons, contending that although she received a copy
of the summons and complaint, this does not constitute service on Honor, who does
not live at the premises. Katrese argues that the complaint includes false representations
which invalidates the summons. The summons is also incomplete for failure to
check a box on page 2, ¶ 5, indicating the capacity in which Defendant is
served.
In opposition, Plaintiff argues
service was properly made on Defendant Katrese, who did not provide any
evidence to support her claims. Plaintiff is entitled to a presumption that
service was lawfully made.
In reply, Defendant argues that the
complaint’s failure to state a cause of action cannot support summons.
II.
DISCUSSION
As
Plaintiff dismissed Defendant Honor, his motion to quash is taken off calendar.
Defendant
Katrese can move to quash service of summons based on the court’s lack of
jurisdiction over Defendant. (Code Civ. Proc., § 418.10, subd. (a)(1). Plaintiff bears the
burden of proving by a preponderance of evidence that "all necessary
jurisdictional criteria are met." (Ziller
Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233; Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)
Defendant’s
contentions that the complaint fails to state a claim and asserts fraudulent
statements are not relevant to the issue of whether the court has jurisdiction
over Defendant. In the context of an unlawful
detainer action, “the motion to quash remains a limited procedural tool
appropriate where the court lacks personal jurisdiction because the statutory
requirements for service of process are not fulfilled, or the summons is defective.
… A defendant may not use a motion to quash service of summons under section
418.10, subdivision (a)(1) to contest any conceivable defect or the merits of
the allegations contained in an unlawful detainer complaint. A defendant may
instead make use of other motions: a demurrer, motion to strike, or answer.”(Stancil v. Superior Court (2021) 11 Cal.5th 381, 396.)
Defendant argues the summons is
defective because she is not familiar with the address for Plaintiff that
appears. Defendant does not cite any authority for the claim that her
unfamiliarity with Plaintiff’s address renders the summons invalid. Nor has
Defendant cited authority that failure to indicate that Plaintiff is suing her
as a defendant, under a fictitious name, as an occupant or on behalf of a
corporation renders the summons invalid.
Defendant’s reliance on Greene v. Municipal Court (1975)
51 Cal.App.3d 446 is misplaced. The summons in Greene
was fatally defective because it required a response within five days pursuant
to Code Civ. Proc., § 1167 governing
unlawful detainer actions, although the complaint did not allege a claim for
unlawful detainer. (Greene at 451.) Therefore, the summons
was defective because it improperly shortened Defendant’s time to plead, which
would otherwise have been 30 days. (Greene at 452.)
The return of service effected by
a registered process server establishes a presumption of affecting the burden
of producing evidence of the facts stated in the return. (Evid. Code, § 647.)
The proof of service indicates that Defendant Katrese was
personally served on September 7, 2024, at the residence at issue. (POS filed
10/2/24.) Katrese also admits she received a copy of the summons and complaint.
(Mot. 3:14-16.)
III.
CONCLUSION
Accordingly, Defendant’s motion to
quash is DENIED. Defendant is ordered to respond within five days. (Code Civ. Proc., § 1167.4.)