Judge: Thomas D. Long, Case: 22STCV18474, Date: 2025-01-21 Tentative Ruling

Case Number: 22STCV18474    Hearing Date: January 21, 2025    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 18, 2024, Plaintiff QBN Capiral LLC filed, and the Court issued, an Application and Order for Appearance and Examination (“ORAP”) for Defendant Teresa Gonzalez.  The ORAP was scheduled for November 19, 2024.  On that date, Defendant failed to appear, and the Court ordered a bench warrant held until January 7, 2025 and continued the hearing.

On January 6, 2025, Defendant filed a motion to quash.  At the January 7, 2025 ORAP, the Court continued the ORAP and motion to quash to January 21, 2025.

A judgment creditor must personally serve a copy of the order for appearance and examination on the judgment debtor not less than 10 days before the date set for the examination.  (Code Civ. Proc., § 708.110, subd. (d).)  Personal service requires personal delivery of a copy of the summons and complaint to the person being served.  (Code Civ. Proc., § 415.10.)

Item 6(a) of the proof of service (filed on November 15, 2024 at 11:21 a.m.) reflects personal service at 11;00 a.m. on September 26, 2024 at 9240 Shellyfield Road, Downey, California 90240.  The box for Item 6(a)(2) is also checked: “(home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party.  I informed him or her of the general nature of the papers.”

Defendant argues that she was not personally served.  She declares that she “was not served on that date [September 26, 2024] and have never been served with the Order,” and her husband was not served with the order.  (Gonzalez Decl. ¶ 5.)  This and the proof of service’s contradictory details of service demonstrate that no personal service was made.

Defendant also argues that the November 19, 2024 ORAP was required to be taken off calendar due to untimely filing of the proof of service.  (Motion at pp. 8-9.)  For an ORAP proceeding, “proof of service of an order . . . must be filed directly with the clerk in the assigned department no later than 4:00 p.m., three court days before the hearing date, unless otherwise ordered by the court.”  (LASC Local Rule 3.221(b)(1).)  “Failure to file proofs of service will result in the proceeding being taken off calendar without costs awarded to the applicant.”  (LASC Local Rule 3.221(b)(2).)  The proof of service therefore must have been filed no later than 4:00 p.m. on November 14, 2024, but it was not filed until November 15, 2024 at 11:21 a.m.  Plaintiff does not refute these facts.  (See Opposition at p. 6.)

The motion to quash is GRANTED IN PART.  The ORAP originally scheduled for November 19, 2024 and thereafter continued is QUASHED and taken off calendar.  The request for a protective order “to halt Plaintiff’s harassing collection efforts against Teresa” is denied without prejudice for lack of a showing of good cause.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 21st day of January 2025