Judge: Theresa M. Traber, Case: 22STCV28680, Date: 2023-11-07 Tentative Ruling

Case Number: 22STCV28680    Hearing Date: November 7, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 7, 2023                 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, erroneously sued as Margarita Salcedo Ortiz

RESPONDING PARTY(S): No response on eCourt as of 11/2/23

CASE HISTORY:

·         09/02/22: Complaint filed.

·         06/23/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for fraud and breach of fiduciary duty. The parties are siblings whose parents allegedly wished for the family property to put up for sale and the proceeds to be equally distributed. Defendant allegedly claimed power of attorney for their parents and took possession of the property for rental and subsequent sale, without distributing the proceeds as requested by their parents.  

Specially Appearing Defendant moves to quash service of the summons and First Amended complaint.

TENTATIVE RULING:

Specially Appearing Defendant Margarita Salcedo’s Motion to Quash Service of the Summons and Complaint is GRANTED

DISCUSSION:

Specially Appearing Defendant moves to quash service of the summons and complaint.

Timeliness 

A motion to quash must be made as 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.” (Code Civ. Proc.  § 418.10(a).) Filing the motion also extends the time within Defendant may answer or demur. (Code Civ. Proc.  § 418.10(b).) 

Plaintiff filed two proofs of service with the Court: a proof of substituted service showing that service was made on August 22, 2023, and a proof of service by mail purporting to show that service was made on August 23, 2023. (See Proofs of Service.) A party has 30 days to answer or demur to a complaint after service is received, plus additional time depending on the manner of service. (See Code Civ. Proc. § 471.5.) This motion was filed and served on September 21, 2023, exactly 30 days after the claimed date of substituted service. (Motion POS.) The motion is therefore timely.

Analysis

            Specially Appearing Defendant moves to quash service of the summons and complaint on the basis that Plaintiff did not comply with the Court’s order to obtain an Amended Summons to be served with her First Amended Complaint.

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.”  (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].) Evidence of the facts giving rise to personal jurisdiction or their absence may be in the form of declarations. (Arensen v. Raymond Lee Organization, Inc. (1973) 31 Cal.App.3d 991, 995.) The Court should exclude evidence that would be inadmissible at trial. (See, e.g., Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43-44 [Court of Appeal excluded inadmissible hearsay evidence offered in support of affirmation of trial court’s denial of motion to quash, and subsequently reversed the trial court’s denial].)

“[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.” (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) 

Specially Appearing Defendant originally challenged this Court’s jurisdiction on December 7, 2022 via a Motion to Quash service of the original summons and complaint. That motion was taken off calendar by the moving party. (December 7, 2022 Minute Order.) The Court then ordered Plaintiffs to file and Serve a First Amended Complaint. (April 21, 2023 Minute Order.) Although the First Amended Complaint was filed June 21, 2023, no proof of service was filed until August 22, when the Court ordered Plaintiff to obtain an Amended Summons and serve that Amended Summons with the First Amended Complaint on Defendant. (August 22, 2023 Minute Order.) To date, no Amended Summons has ever been issued by the Court. Plaintiff’s proofs of service are therefore facially defective because they are not in compliance with the Court’s order.

Specially Appearing Defendant also moves to quash on the basis that the original summons and both versions of the Complaint improperly name her as Margarita Salcedo Ortiz, which is neither her true name nor a fictitious name that she has ever used. One "who is not named either by his true or a fictitious name or as an unknown defendant is not a proper party to an action, and service of summons upon such person upon proper motion should be quashed." (Kline v. Beauchamp (1938), 29 Cal.App.2d 340, 342.) The failure to designate a name under which a party is identified in the pleadings as a fictitious name renders any service under that name defective. (See Fuss v. City of Los Angeles (1958) 162 Cal.App.2d 643, 646.) Here, all of Plaintiff’s papers identify the Defendant in this case as Margarita Salcedo Ortiz, and neither the original nor the First Amended Complaint identify that name as the fictitious name under which Specially Appearing Defendant was sued. (See, e.g., FAC ¶ 2.) Counsel for Specially Appearing Defendant categorically states under penalty of perjury that Margarita Salcedo has never adopted the name Ortiz. (Declaration of Robert Wright ISO Mot. ¶¶ 3-4.) Plaintiffs, having failed to respond to this motion, offer nothing to dispute this contention, and have therefore not carried their burden that service was properly made.  

For the reasons stated above, Specially Appearing Defendant is entitled to an order quashing service of the summons and First Amended Complaint.

CONCLUSION:

            Accordingly, Specially Appearing Defendant Margarita Salcedo’s Motion to Quash Service of the Summons and Complaint is GRANTED

            Court to give notice.

IT IS SO ORDERED.

Dated: November 7, 2023                               ___________________________________

                                                                                    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.