Judge Theresa M. Traber, Case Number: 24STCV13485, Date: 2025-01-08 Tentative Ruling

Judge: Theresa M. Traber, Case: 24STCV13485, Date: 2025-01-08 Tentative Ruling

Case Number: 24STCV13485 Hearing Date: January 8, 2025 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 8, 2025 TRIAL DATE: NOT SET

CASE: Lucina Ayala Flores, et al. v. Salvador Munoz Jr., Trustee of the Ana Maria Hernandez Trust dated January 10, 1994

CASE NO.: 24STCV13485

MOTION TO QUASH SERVICE OF THE SUMMONS AND COMPLAINT

MOVING PARTY: Defendant Salvador Munoz Jr., Trustee of the Ana Maria Hernandez Trust dated January 10, 1994

RESPONDING PARTY(S): Plaintiffs Lucina Ayala Flores, et al.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a habitability action that was filed on May 30, 2024. Plaintiffs allege that Defendant failed to correct numerous severe habitability defects at a property owned by Defendant in which Plaintiffs were tenants. Examples of these defects include widespread vermin infestations, mold, sewage spills, water intrusion, and various construction defects.

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.)

Timeliness of Motion

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 Amended Proof of Service, filed with the Court on November 22, 2024, stated that service was made by substituted service on September 16, 2024. (See Amended Proof of Service.) Thus, Plaintiff argues, Defendant’s motion is untimely because it was brought on December 5, 2024—well outside the time to answer the Complaint. Although the Court may extend the time to respond “for good cause” under section 418.10(a), Defendant’s motion fails to explain the delay in his response beyond the vague contention that Defendant “only learned about the case from contact by an attorney” without a specific date. (Declaration of Salvador Munoz ISO Mot. ¶ 6.) This statement is insufficient to support a finding of “good cause” to permit a late motion to quash. Even if the Court were to consider the merits of the motion, Defendant would not be entitled to relief for the reasons stated below.

Service of Process

Setting aside the timing of the motion, Defendant argues that he was not properly served with the summons and complaint.

Code of Civil Procedure section 415.20 governs substituted service of the Summons and Complaint. This statute provides, as relevant here:

(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served [. . .], a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, [. . .], with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served [. . .], a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing [. . .], in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(Code Civ. Proc. § 415.20 (a)-(b) [emphasis added].) Ordinarily, “two or three attempts” at personal service will satisfy the requirement of reasonable diligence. (Bein v. Brechtel Jochim Grp. Inc. (1992) 6 Cal.App.4th 1387, 1391-92.)

The Amended Proof of Service states that the process server made three attempts to serve the summons and complaint on Defendant at 155 West Florence Avenue, Los Angeles, CA 90003. (Amended POS p. 3.) The first attempt was made on September 12, 2024 at 12:36 PM. At that time, the process server was informed by “Isabel Lopez front desk for Jalisco building supplies” that there was no one by Defendant’s name at that address. (Id.) The process server made a second attempt on September 14, 2024, at 12:28 PM at the same address, and was told by Tanya Gomez that “Salvador is not available at this time.” (Id.) The third attempt was made on September 16, 2024, with a copy of the documents left with Ms. Lopez and mailed to the same address the next day. (Amended POS ¶ 5.)

Defendant contends that service was not properly made because the address at which service was made is not his business address. (Munoz Decl. ¶ 2.) Defendant denies knowing Isabel Lopez and states he never received the Summons and Complaint. (¶¶ 3, 5.) Plaintiffs dispute Defendant’s assertion, arguing that public records list the 155 W. Florence Avenue address as the address for the Trust and for Defendant’s businesses. Plaintiff has produced a 2004 Soils Report Approval Letter to the Trust from the City of Los Angeles addressed to the 155 W. Florence address. (Plaintiffs’ Exh. B.) Plaintiff has also provided web listings identifying Jalisco Building Materials Inc. as a separate company at the same address and stating that the president is “Salvador Muoz.” (Exh. C.) A 2002 Certificate of Penalty Lien on the 155 W. Florence Address issued by the Department of Industrial Relations identifies Jalisco Building as a business entity at that address. (Exh. E.) Finally, the California Secretary of State’s Business Record Search lists 155 West Florence Street, Inc. as a suspended corporation with “Salvador M Espinoza” identified as the corporate agent. (Exh. F.)

Plaintiff has offered substantial evidence, including numerous public records, tending to show that Defendant’s business address is located at 155 West Florence Avenue, Los Angeles CA 90003. In the face of such a showing, the Court finds Defendant’s bare denials unpersuasive and not credible. The Court therefore does not 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 Parties to give notice.

IT IS SO ORDERED.

Dated: January 8, 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.