Judge: Theresa M. Traber, Case: 22STCV28680, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV28680    Hearing Date: December 7, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 7, 2022                  TRIAL DATE: NOT SET

CASE:                         Marissa Cecilia Dominguez, et al. v. Margarita Salcedo Ortiz

CASE NO.:                 22STCV28680           

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:               Specially Appearing Defendant Margarita Salcedo

RESPONDING PARTY(S): No response on eCourt as of 12/2/22

CASE HISTORY:

·         09/02/22: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This action was filed on September 2, 2022 alleging breach of fiduciary duty, conversion, and fraud. Plaintiffs allege that Defendant failed to distribute to Plaintiffs their share of rental income from the family estates and proceeds from the sale of the estate.

Specially Appearing Defendant Margarita Salcedo moves to quash service of the summons.

TENTATIVE RULING:

            Specially Appearing Defendant’s Motion to Quash is CONTINUED to January 4, 2023, at 9:00 AM. Specially Appearing Defendant is ordered to re-serve this motion on all parties and file proof of service with the Court by 5:00 PM on Friday, December 9, 2022.

            Any opposition or reply briefing is to be served and filed per code.

DISCUSSION:

Specially Appearing Defendant Margarita Salcedo moves to quash service of the summons.

Special Appearance 

No motion under Code of Civil Procedure 418.10 “shall be deemed a general appearance by the defendant.” (Code Civ. Proc. § 418.10(d).) Here, Specially Appearing Defendant (“Defendant”) brought this motion under section 418.10. Thus, filing this motion does not constitute a general appearance.  

Procedural Defect Regarding Service

            Specially Appearing Defendant did not file a proof of service with this motion stating when or how Plaintiffs were served. Under Code of Civil Procedure section 1005(b), any motion to be filed with the Court must be served on all parties. As Plaintiffs have not responded to this motion, the Court cannot overlook a defect in service of the moving papers in a matter of this nature.

            Accordingly, the Court will exercise its discretion to continue the hearing on this matter to ensure proper notice has been given.

CONCLUSION:

            Accordingly, Specially Appearing Defendant’s Motion to Quash is CONTINUED to January 4, 2023, at 9:00 AM. Specially Appearing Defendant is ordered to re-serve this motion on all parties and file proof of service with the Court by 5:00 PM on Friday, December 9, 2022.

            Any opposition or reply briefing is to be served and filed per code.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  December 7, 2022                              ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.