Judge: Stephen P. Pfahler, Case: PC058000, Date: 2022-08-17 Tentative Ruling

Case Number: PC058000    Hearing Date: August 17, 2022    Dept: F49

Dept. F-49

Calendar #

Date: 08-17-22

Case # PC058000

Trial Date: 01-23-2023

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant, Service Link Title Company, erroneously sued as Service Link Title Company

RESPONDING PARTY: Plaintiffs in Propria Persona, Mylene Farooq and Ibrahim Farooq

RELIEF REQUESTED

Motion to Quash Service of Summons

Specially appearing Defendant Service Link Title Company, erroneously sued as Service Link Title Company, will move the Court for an order quashing the purported service of summons in this action on the ground of lack of personal jurisdiction over Defendant due to lack of proper service. This motion will be made on the basis that the purported service of summons and complaint was not proper.

SUMMARY OF ACTION

This litigation concerns a single property, a residence at 18503 Olympian Court, Santa Clarita, CA 91351 (the “Property”). On June 10, 2011, Plaintiff Mylene Lopez Farooq (“Plaintiff’) voluntarily sought out funding in the amount of $276,400 (the “Loan”) from Bank of America, N.A., secured by the Property with a first priority deed of trust (“DOT”). On April 11, 2013, Bank of America, N.A.  assigned its interest in the deed of trust to Green Tree Servicing LLC (“Ditech”) which later became DiTech. On September 6, 2016, DiTech substituted Clear Recon Corp., as the trustee under the DOT.

For Plaintiffs failure to reinstate the Loan or otherwise cure the default, a Notice of Default (“NOD”) was recorded in the Official Records of Los Angeles County on (“NOD”) on September 28, 2016.

While the Loan remained in default, DiTech, as the loan servicer continued to work with Plaintiff to explore options to avoid foreclosure. Where no solution presented itself, and Mylene Farooq, as the Trustor, did nothing to tender to reinstate the loan, a Notice of Trustee Sale (“NOTS”) was recorded on August 24, 2017.

In April 2019, LoanCare began servicing the loan. On October 24, 2019, a Corporate Assignment of Deed of Trust was recorded in the Official Records of the County of Los Angeles as Instrument No. 20191140946 which transferred Ditech’s interest in the Deed of Trust to LoanCare. For Plaintiffs failure to reinstate the Loan or otherwise cure the default, a Notice of Trustee Sale (“NOTS”) was recorded on January 19, 2022. Multiple copies of the 2022 NOTS were mailed to Plaintiff at the Property and other locations where she might receive notice, were posted at the Property, and were published. As of the date of this filing, the Loan remains in default and Plaintiff has made no credible offer of tender to reinstate the Loan. The total arrearage on the Loan is $448,148.11.

On September 25, 2017, Plaintiff Mylene Farooq (“Plaintiff”) filed a Complaint against Defendants Bank of America, N.A., Ditech Financial, LLC f/k/a Green Tree Servicing, LLC, Clear Recon Corp., and Does 1 through 20, inclusive (collectively, “Defendants”) alleging the following causes of action (1) Violation of California Civil Code § 2923.55, (2) Violation of California Civil Code § 2923.6, (3) Violation of California Civil Code § 2923.7, (4) Violation of California 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, and (9) Unfair Business Practices.

On July 22, 2022, Defendant, Service Link Title Company, erroneously sued as Service Link Title Company filed motion to quash service of summons.

On August 4, 2022, Plaintiffs Mylene Farooq and Ibrahim Farooq filed an opposition to Defendant’s motion to quash service of summons.

On August 10, 2022, Defendant filed a reply to Plaintiffs’ opposition.

RULING: GRANT

Defendant, Service Link Title Company, erroneously sued as Service Link Title Company, specially appearing, move the Court for an order quashing the purported service of summons in this action on the ground of lack of personal jurisdiction over Defendant due to lack of proper service. This motion will be made on the basis that the purported service of summons and complaint was not proper.

 “A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (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(a).)  “[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.)  “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”  (Id. at 1441-1442.)  When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)  “A court lacks jurisdiction over a party if there has not been proper service of process.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Plaintiff Mylene Farooq (“Plaintiff’) filed this action on September 25, 2017. (Declaration of Lis Anne Coe Decl. ¶ 3.) Plaintiff filed a First Amended Complaint on November 26, 2018. (Id.) Moving defendant ServiceLink was not named in the original complaint or the First Amended Complaint. Plaintiffs filed a Second Amended Complaint (SAC) on February 18, 2022. (Id.) The Second Amended Complaint filed on February 18, 2022, names Service Link [sic] Title Company as a defendant at paragraph 62 of the SAC. (Id. ¶ 4.) ServiceLink Title Company was not previously a defendant in this case. (Id.) No summons has ever been issued in relation to the SAC. (Id. ¶ 5.) On February 26, 2022, a packet consisting of 80 pages of documents (“February 26, 2022, Packet”) purportedly containing the SAC Filed 2/18/22 was mailed to ServiceLink at its address 3220 El Camino Real, Irvine, 92602-1377.  (Id. ¶ 7.) However, the February 26, 2022, packet did not contain the SAC filed 2/18/22. (Id.) Nor did the February 26, 2022, packet contain an Amended or Re-Issued Summons associated with the SAC Filed 2/18/22. (Id.)  The Summons in the February 26, 2022, Packet at page 4 appears to have been partially completed but do not contain the court’s seal. (Id.) The April 13, 2022, packet did not contain any summons associated with the SAC filed on February 18, 2022, or any summons at all. (Id. ¶ 11-14.)

In opposition, Plaintiffs argue Defendant Service link was aware of Plaintiffs’ legal action and filing the Motion to quash after one hundred twenty days (120) since Defendant Service link was served. Now Service link attorney claims her client was not properly served. The Motion was brought in bad faith as the filing of the Motion was beyond the 30-day requirement under CCP 418.10 to file a Motion to quash.

Attorney for Defendant Service link appeared and argued on June 30, 2022, to dismiss Plaintiffs’ claim without filing any pleadings. Such participation operates as consent to the court's exercise of jurisdiction in the proceeding pursuant to Code of Civil Procedure § 410.50 subd(a).

Plaintiffs argue that Service links' Motion to quash is a violation of CCP 128.7 (b)(1). All the Court rulings show that the attorney for Service link appeared in this action as JP MORGAN CHASE since April 7, 2022. The court recognized Lisa Anne Coe for Service link's appearance as appearing for JP MORGAN CHASE. JP MORGAN CHASE has not filed any response to the Plaintiffs' SAC.

Here, the Second Amended Complaint filed on February 18, 2022, fails to show that service was effected on Defendant, Service Link Title Company, erroneously sued as Service Link Title Company. In fact, there is no service of summons filed with the Court for the Second Amended Complaint. When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) Plaintiffs have not filed any supporting evidence to show that service upon Defendant, Service Link Title Company, erroneously sued as Service Link Title Company was properly effectuated, instead, Plaintiffs argue that the motion is untimely and that the Defendants appeared in this action.

Under Code of Civil Procedure section 418.10, subdivision (a)(1), a motion to quash service of summons must be made “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.” The Court finds that the motion is untimely as it was filed on July 22, 2022, and the Second Amended Complaint was filed on February 18, 2022. However, the Court finds good cause to allow that motion as no summons was filed with Second Amended Complaint.

Accordingly, Defendant’s motion to quash service of summons is GRANTED.

Moving party to give notice.