Judge: Stephen P. Pfahler, Case: PC058000, Date: 2022-12-28 Tentative Ruling

Case Number: PC058000    Hearing Date: December 28, 2022    Dept: F49

Dept. F-49

Calendar # 3

Date: 12-28-22

Case # PC058000

Trial Date: 01-23-23

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Specially Appearing Defendant, Lawyers Title Company

RESPONDING PARTY: N/A

RELIEF REQUESTED

            Specially Appearing Defendant Lawyers Title Company (“SAD/LTC”) requests an order quashing the service of summons on the ground of lack of personal jurisdiction over defendant due to lack of personal service. Defendant also requests that judgment be entered in favor of Lawyers Title Company.

SUMMARY OF ACTION

            This mortgage foreclosure action was filed on September 25, 2017. Plaintiffs filed a second amended complaint on February 18, 2022, adding multiple defendants, including LTC. The SAC alleges nineteen causes of action for fraud, breach of contract, breach of the covenant of good faith and fair dealing, unfair competition, negligent infliction of emotional distress, intentional and negligent misrepresentation, violations of the Homeowner’s Bill of rights, declaratory relief, negligence, and violation of 15 U.S.C 1681.

On September 26, 2022 LTC brought this motion to quash service. This motion was originally set scheduled for February 8, 2023, then advanced to December 8, 2022, and then continued to December 28, 2022.  

No opposition has been filed with the court as of December 27, 2022. However, in Defendant LTC’s reply, filed December 20, 2022, LTC states that Plaintiff served an opposition on LTC on December 19, 2022 via email. (Coe Decl. ¶ 3.) However, the court docket does not reflect that this opposition was filed with the court. Additionally, an opposition served on December 19, 2022 is untimely because all opposing papers must be filed nine court days before hearing. (Code Civ. Proc. § 1005(b).) Regardless of the late service, because the because the opposition was not properly filed, the court cannot view or consider the opposition.

RULING

The court GRANTS specially appearing Defendant Lawyers Title Company’s motion to quash service of summons.

            Defendant LTC contends 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 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.)

The motion to quash must be made at defendant's initial appearance in the action, on or before the last day to plead “or within any further time that the court may for good cause allow.” (CCP § 418.10(a); see Marriage of Obrecht (2016) 245 Cal.App.4th 1, 16-17 (where motion to quash was filed after Defendant's time to plead expired, but Plaintiff filed no objection that the motion was untimely and court addressed motion on its merits, motion to quash was deemed timely).) Here, the court finds there is good cause to allow the Motion to be heard because no summons was issued with the SAC and Plaintiff has not properly filed an opposition.

“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, LTC has not appeared in this matter. LTC was not named in the original complaint or the FAC. The SAC named LTC. LTC was not previously a defendant in this case. A review of the Court’s docket reveals that no summons was issued on or after Plaintiffs filed the SAC. While no summons was issued on the SAC, Plaintiffs filed proofs of service on April 6, 2022, which declare that summons were served on all SADs, including the agent of LTC.  However, Plaintiffs were required to have a summons issued on the SAC, and then serve the new defendants with the new summons issued on the SAC. Plaintiff has not filed any supporting evidence to show that service upon Defendant LTC was properly effectuated with the reissued summons.

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

Plaintiffs have filed a proposed form of judgment on December 15, 2022.