Judge: Richard S. Whitney, Case: 37-2023-00001083-CU-BC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 11, 2023

10/13/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Motion to Quash (Civil) 37-2023-00001083-CU-BC-CTL KOTULSKI VS KNIGHT LAW GROUP LLP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: SPECIALLY APPEARING DEFENDANT KNIGHT LAW GROUP LLP'S CONTINUED MOTION TO QUASH PLAINTIFF'S SERVICE OF SUMMONS AND COMPLAINT is GRANTED.

Plaintiff DAVID KOTULSKI's ('Plaintiff') originally failed to file an opposition to Defendant KNIGHT LAW GROUP LLP's ('KNIGHT') motion, but the Court continued the hearing to allow Plaintiff an opportunity to file an opposition. In Plaintiff's apparent attempt at an opposition Plaintiff reargues the motion was not properly served. This hearing was continued to address such assertion. Plaintiff also argues the hearing is untimely under CCP section 418.10(b).

CCP section 418.10(b) provides, as a motion to quash service of summons: The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005. The service and filing of the notice shall extend the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days.

(Code Civ. Proc., § 418.10(b).) While Plaintiff is correct, the Court may still consider the motion.

A 'tardy hearing date on a motion ... under section 418.10' does not 'deprive[ ] the trial court of jurisdiction to consider the merits of the motion.' (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296, 42 Cal.Rptr.3d 268; see also Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 3:381 ['scheduling a hearing date beyond 30 days does not invalidate the motion'].) (Preciado v. Freightliner Custom Chassis Corporation (2023) 87 Cal.App.5th 964, 969, fn. 4.) KNIGHT explains that it scheduled the motion using this Court's court calendaring reservation system for motions. It was this Court's impacted calendar that resulted in the scheduling of the hearing after 30 days, not KNIGHT's choice. The Court elects to consider the merits of the motion. (See Code Civ. Proc., § 418.10(a).) '[O]nce a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of Calendar No.: Event ID:  TENTATIVE RULINGS

3019249 CASE NUMBER: CASE TITLE:  KOTULSKI VS KNIGHT LAW GROUP LLP [IMAGED]  37-2023-00001083-CU-BC-CTL the evidence the validity of the service and the court's jurisdiction over the defendant.' (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.) Plaintiff purportedly served Specially Appearing Attorneys for KNIGHT via substitute service, but Plaintiff has not filed a proof of service that indicates the papers were left with a person at least 18 years of age apparently in charge at the office or usual place of business of KNIGHT. Plaintiff has failed to substantively oppose the motion on the merits and to demonstrate that service was proper. The motion is granted.

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