Judge Ralph C. Hofer, Case Number: 24NNCV01304, Date: 2024-06-28 Tentative Ruling

Plaintiff OG Pasadena, LLC alleges that defendant William D. Hoyman conducts business as The Bissell House located on Orange Grove Avenue in South Pasadena. The complaint alleges that defendant Hoyman was the CEO, sole board member, and secretary of defendant 201 Orange Grove, Inc. which was the former owner of the real properly located at 201 Orange Grove, where defendant Bissell House 1887 LLC, has and continues, to operate a boutique hotel (subject property).

Plaintiff alleges that the subject property was sold under a power of sale under a Deed of Trust, that title to the subject property under the sale was perfected in foreclosure purchaser’s name on March 1, 2023, by the recording of a Trustee’s Deed Upon Sale, and that title to the subject property was subsequently transferred from foreclosure purchaser to plaintiff, with plaintiff’s title having been perfected on April 12, 2023 by the recording of a Grant Deed.

Plaintiff alleges that the continued possession of the subject property by all defendants is unauthorized, criminal, willful, malicious and/or fraudulent. It is also alleged that defendants have prevented plaintiff from obtaining possession of the subject property, and have rented all or a portion of the subject property to others, and collected rents or profits, without renumeration to plaintiff.

The complaint alleges causes of action for trespass to real property, ejectment, constructive trust—unjust enrichment, and accounting.

CCP § 418.10 permits a defendant, on or before the last day of his or her time to plead, to serve and file a motion to quash service of summons “on the ground of lack of jurisdiction of the court over him or her.” CCP §418.10(a)(1).

The proof of service in the file shows that moving defendant William D. Hoyman, an individual, was personally served with the summons and complaint on May 3, 2024, at the address defendant identifies as defendant Hoyman’s address in the caption of the moving papers. The proof of service is signed under penalty of perjury by the process server. Moving defendant does not in his declaration under penalty of perjury submitted with the motion state any facts which would suggest this service did not occur as represented in the proof of service. Plaintiff has pointed out this fact in the opposition.

Defendant instead argues that service here was not properly made because defendant does not recognize as valid the papers and process made “for the reason that the papers do not contain a valid seal,” and “for the reason that the seal of the court was not affixed to the purported summons page…” [Hoyman Decl., paras. 3, 4].

The argument seems to be that because the summons includes these purported defects, the service of that summons was insufficient to require defendant to respond to the summons or to obtain personal jurisdiction over defendant.

“Except as otherwise expressly provided by law, the seal of a court need not be affixed to any proceeding therein, or to any document, except to the following:

Defendant argues that the legislatively-mandated seal for a superior court can be found in Government Code section 68076, which states:

(d) Have inscribed around the central words or design “Superior Court of California, County of [___],” inserting the name of the county.

The seal of any such court, which has been adopted before April 1, 1880, shall be the seal of such court until another is adopted.

Defendant argues that the image at the bottom-left of the summons here measures one inch in diameter, rather than the required one and one-fourth inches. There is no indication that the subject seal was not adopted before April 1, 1880.

Plaintiff in opposition argues that the factual basis for this argument is without merit, as the copy of the seal attached to the motion measures 1.3 inches, in excess of the 1 and ¼ inches required. This situation in fact appears to be the case because the diameter of the document submitted at 100% image measuring 1 inch and 6/16 or 3/8 inches. [See motion, Hoyman Decl., para. 1, Ex. A]. This is 2/16, or 1/8 of an inch greater the 1 and ¼ inches required.

In any case, the defendant in the moving papers cites to CCP section 412.20, but fails to include all sections of that statute, which provides, in pertinent part:

“(a) Except as otherwise required by statute, a summons shall be directed to the defendant, signed by the clerk and issued under the seal of the court in which the action is pending, and it shall contain:

(3) A direction that the defendant file with the court a written pleading in response to the complaint within 30 days after summons is served on him or her….”

There is no question that the summons at issue was prepared and signed by the clerk of the court, on the “Form Adopted for Mandatory Use, Judicial Council of California.” [Ex. A]. The summons accordingly is deemed to comply with the section, so that the seal is sufficient, as well as the other aspects of the summons. Defendant has failed to establish that service of the summons was ineffective on this basis. The motion accordingly is denied.

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