Judge: Stephen P. Pfahler, Case: PC058000, Date: 2022-08-15 Tentative Ruling

Case Number: PC058000    Hearing Date: August 15, 2022    Dept: F49

Dept. F-49

Calendar #

Date: 08-15-22

Case # PC058000

Trial Date: 01-23-23

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Specially Appearing Defendants Bank of America, in its own capacity and as successor by de jure merger with BAC Home Loans Servicing, LP fka Countywide Home Loans Servicing LP, and as successor by merger to ReconTrust Company, N.A., Bank of America Corp., Countywide Home Loans, Inc., and Mortgage Electronic Registration Services, Inc.

RESPONDING PARTY: Plaintiffs Mylene Lopez-Farooq and Ibrahim Farooq

RELIEF REQUESTED

Quash service of summons.

SUMMARY OF ACTION

On September 25, 2017, Plaintiff Mylene Lopez-Farooq (“Mylene”) filed a complaint against Defendants Bank of America N.A. (“Bank of America”), Ditech Financial, LLC f/k/a Green Tree Servicing, LLC (“Ditech”), and Clear Recon Corp. (“Clear Recon”) alleging causes of action for: (1) violation of Civil Code § 2923.55; (2) violation of Civil Code § 2923.6; (3) violation of Civil Code § 2923.7; (4) violation of Civil Code § 2924.12; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) negligence; (8) negligent infliction of emotional distress; (9) unfair business practices.   

On May 24, 2018, the court sustained Bank of America’s demurrer without leave to amend as to the First through Fourth Causes of Action.  As the demurrer was sustained without leave to amend as to Bank of America, Judgment was entered in favor of Bank of America, and against Mylene, on July 19, 2018.   

On November 26, 2018, Mylene, self-represented, filed the First Amended Complaint (“FAC”) for (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) negligence; (8) negligent infliction of emotional distress; and (9) unfair business practices. 

On February 18, 2022, Mylene filed a second amended complaint, added a new Plaintiff Ibrahim Farooq, and asserted nineteen causes of action against several defendants including Bank of America, Bank of America Corp. and newly added defendants BAC Home Loans Servicing, LP fka Countywide Home Loans Servicing LP, ReconTrust Company, N.A., , Countywide Home Loans, Inc., and Mortgage Electronic Registration Services, Inc (sued as “MERS, Inc.”) (collectively the Specially Appearing Defendants (“SAD”).

RULING: The Court GRANTS SADs’ Motion to Quash Service of Summons.

            The SADs contend that the court lacks jurisdiction over them because Plaintiffs failed to serve the summons for the SAC as required by statute.

            Code of Civil Procedure section 418.10 provides, in relevant part:  “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 . . . (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).)  A defendant may move to quash service of summons for lack of jurisdiction based on ineffective service of process.  (Ziller Elecs. Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.)  “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 facts requisite to an effective service.”  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [internal quotations omitted].)   

            A review of the Court’s docket reveals that no summons was issued on or after Plaintiffs filed the SAC, and Plaintiffs concede that no summons was issued for the SAC.  (Opp. 10:23-25.)    Here while no summons was issued on the SAC, Plaintiffs filed proofs of service on April 6, 2022, which reflect that summons on the SAC were served on SADs. 

            Plaintiffs contend that summons are not necessary when amending a complaint with the same defendants.  However, Plaintiffs are misguided.

            “If any defendants have not appeared, a summons must be issued upon the amended complaint, and served upon such defendants. . . .  [A]n amended summons is required when new parties defendant have been added.”  (Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433.)

            Here, none of the original defendants answered the Complaint, the FAC, or the SAC, or have appeared in this matter.  Accordingly, Plaintiffs were required to have a summons issued on the SAC, and then serve the same on the original defendants.  Similarly, as set forth above, Plaintiffs were required to serve the new defendants with the summons issued on the SAC.  Plaintiffs’ contention that SADs appeared by filing pleadings such as motions to quash are without merit, a motion to quash is a responsive pleading challenging the court’s jurisdiction over the SADs.  In addition, Plaintiffs’ contention that the instant Motion should be denied because it was not heard within thirty days after it was filed is without merit, as the Court may allow a motion to quash to be heard “within any further time that the court may for good cause allow.”  (Code Civ. Proc., § 418.10(a).)  Here, SADs scheduled the instant Motion on the first date available, and the Court finds that there is good cause to allow the Motion to be heard.

            Thus, SADs Motion to Quash Service of Summons is GRANTED.