Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiff Montano Investments, Inc. (“Plaintiff”) filed its First Amended Complaint (“FAC”) against defendants USA Real Estate Investment Services, Inc., et al. alleging that defendant Marc Mendez aka Marcus Mendez (“Mendez”) defrauded Plaintiff of its property by forging its president’s signature on a promissory note and fraudulently foreclosing on the subject property. The complaint sets forth eleven causes of action for (1) Malicious Prosecution, (2) Quiet Title, (3) Fraud, (4) Civil Conspiracy to Commit Fraud, (5) Aiding and Abetting Fraud, (6) Rescission (7) Equitable Set Aside of Foreclosure, (8) Wrongful Foreclosure, (9) Abuse of Process, (10) Violation of Civil Code § 2943, (11) Promissory Estoppel. 

Defendant Mendez moves to quash service of summons and FAC. 

Any opposition was due on or before August 2, 2024; none has been filed to date. 

 

II. PROCEDURAL HISTORY 

On August 4, 2022, Plaintiff filed a First Amended Complaint.  

On August 31, 2022, the Court consolidated this case with cases 22STUD00257 and 22STUD00250.  

On February 1, 2023, Plaintiff filed its proof of service as to Defendant Mendez.  

On July 20, 2023, Mendez filed his first motion to quash service of summons. 

On August 16, 2023, Mendez’s motion to quash service of summons was granted. 

On March 31, 2024, Plaintiff’s application for an order for publication was granted to serve Mendez via Plano Star Courier, a newspaper published in Plano, Texas. 

On April 2, 2024, Plaintiff’s application for an order for publication was granted to serve Mendez via the Metropolitan News-Enterprise, a newspaper published in Los Angeles, California. 

On May 3, 2024, Plaintiff filed proof of publication of service via the Metropolitan News-Enterprise in Los Angeles, California. 

On June 3, 2024, Mendez filed his second motion to quash service of summons. 

 

III. LEGAL STANDARD 

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)¿¿ 

When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process, the burden is on the plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) “The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 790.)¿ 

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203.)  

 

IV. DISCUSSION 

Mendez argues Plaintiff failed to effectuate valid service of process by publication, because the proof of publication provides he was served in California when Plaintiff is not a resident of California. Mendez declares that he is a resident of the State of Texas. (Decl. Mendez ¶ 2.) Mendez further argues that despite the Hon. Juge Mark E. Windham signing an Order for Publication for Plaintiff on March 31, 2024 to serve Mendez by publication in Plano, Texas, Plaintiff has still failed to effectuate valid service on Mendez. There is no proof of service by publication in Texas to date. 

Here, Mendez has rebutted the presumption that service was proper. (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].)¿Because Plaintiff did not oppose the motion, Plaintiff necessarily fails to prove that proper service had been effectuated. 

 

V. CONCLUSION 

Mendez’s motion to quash service of summons is GRANTED 

 

Moving Party is ordered to give notice. 

 

DATED: August 14, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.