Judge: Theresa M. Traber, Case: 24STCV09805, Date: 2025-02-26 Tentative Ruling

Case Number: 24STCV09805    Hearing Date: February 26, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 26, 2025                 TRIAL DATE: NOT SET

CASE:                         Elder Emmanuel Leon v. Lawrence Delasbour

CASE NO.:                 24STCV09805           

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

MOVING PARTY:               Specially Appearing Defendant Lawrence Delasbour

RESPONDING PARTY(S): Plaintiff Elder Emmanuel Leon

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Filed on April 18, 2024, this is a personal injury action arising from a motor vehicle accident. Plaintiff alleges that Defendant’s car collided with Plaintiff’s vehicle when Defendant ran a red light.

Defendant moves to quash service of the summons and complaint.

TENTATIVE RULING:

Defendant’s Motion to Quash Service of the Summons and Complaint is DENIED.

            Defendant is deemed to have made a general appearance this date.

DISCUSSION:

Defendant moves to quash service of the summons and complaint.

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.  

Legal Standard

On a motion to quash service of the summons and complaint, the moving party must first present some admissible evidence, such as declarations or affidavits, to place the issue of minimum contacts before the Court. (School Dist. of Oskaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131.) “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].) A non-resident defendant may be subject to either general or specific jurisdiction. (See Elkman v. National States Insurance Co., supra, 173 Cal.App.4th at 1314.)

Analysis

            Plaintiff objects to the motion on the grounds that it was not timely brought. A Motion to Quash must ordinarily be brought within the time required to answer the Complaint. (See Code Civ. Proc. § 418.10(a).) Here, the Proof of Service filed with the Court on August 23, 2024, stated that service was made by substituted service on July 19, 2024. (See Proof of Service.) Thus, Plaintiff argues, Defendant’s motion is untimely because it was brought on January 24, 2025—well outside the time to answer the Complaint. In response, Defendant argues that the motion is timely because it is functionally a pleading before default has been entered. Although Defendant relies on Goddard v. Pollock (1974) 37 Cal.App.3d 137 for that argument, close reading of the opinion belies Defendant’s position. In Goddard, the issue at hand was whether a trial court was required to set aside a default previously entered while a pending motion to quash was on file. (Goddard, supra, 37 Cal.App.3d at 140-41.) The Court of Appeal held in the affirmative on the basis that a motion to quash is specifically identified as a pleading in Code of Civil Procedure section 585, which governs entry of default. (Id. at 141.) The Court of Appeal reasoned that, even though the motion to quash at issue was late, well-established authority holds that a belated pleading is sufficient to avoid default so long as default has not yet been entered when the pleading is filed. (Id. at 141, see also Reher v. Reed (1913) 166 Cal. 525, 528; Bank of Haywards v. Keynon (1917) 32 Cal.App. 635, 636-37.) However, the Goddard court also stated that the Court retains the discretion to strike untimely pleadings, including untimely motions to quash. (Goddard, supra, at 141.) Thus, Goddard does not stand for the position that a Motion to Quash cannot be denied as untimely—just the opposite.

Here, although the Court may extend the time to respond “for good cause” under section 418.10(a), Defendant’s motion entirely fails to account for the five-month delay in responding to the Complaint. Even if the motion had been timely brought, the sole evidentiary support for the challenge to service is a declaration from Defendant’s counsel, who is not competent to testify to the circumstances of service as they are not within counsel’s personal knowledge. On such a meager record, the Court is not inclined either to extend the time to bring this motion nor to find good cause to quash service of the summons and complaint.

CONCLUSION:

            Accordingly, Defendant’s Motion to Quash Service of the Summons and Complaint is DENIED.

            Defendant is deemed to have made a general appearance this date.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  February 26, 2025                              ___________________________________

                                                                                    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.