MARIA SOTO
[address]
[tel no.]
[email]
Appearing Pro Se
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF TULARE
| AURELIE V. ROCHA,ERNEST S. ROCHA Plaintiffs, vs. MARIA A. SOTODAVID J. WEINBERGER Defendant. | CASE NO: VCL-1196905MOTION TO QUASH SERVICE AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: Time: Dept: |
PLEASE TAKE NOTICE that on ________ day of _____________, 2021 at _______, or as soon after that as the matter can be heard, specially appearing Defendants, MARIA A. SOTO and DAVID J. WEINBERGER will appear specially and move the Court for an order quashing Plaintiffs’ purported service of complaint on Defendants. This motion is made under Section 418.10 of the Code of Civil Procedure on the grounds that the complaint was not properly served on defendants in that the Defendants were not duly served in a timely manner with the complaint and case management statement, instead they were well beyond the 60-day service period and 15-day period respectively, without an order of court granting an extension to serve. Therefore, the purported service on Defendant was not valid and should be quashed.
This motion will be based on this notice of motion, the memorandum of points and authorities; the Declaration of DEFENDANTS – MARIA A. SOTO & DAVID J. WEINBERGER, the pleadings, documents, records and files in this action, and such oral and documentary evidence as may be presented at the hearing.
Dated: ____________________
Respectfully submitted,
By:__________________________
MARIA A SOTO,
Pro Se
Specially Appearing Defendant
Dated: ____________________
Respectfully submitted,
By:__________________________
DAVID J. WEINBERGER,
Pro Se
Specially Appearing Defendant
MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATEMENT OF FACTS
On February 24th, 2021, AURELIA V. ROCHA and ERNEST S. ROCHA, (“Plaintiffs”) filed their complaint against the specially appearing Defendants, MARIA A. SOTO and DAVID J. WEINBERGER, (“Defendants”).
The Proof of Service by Plaintiffs shows that Defendants were served with the complaint OUT OF TIME. Defendants deny knowledge of this suit and allege that they had no knowledge of the complaint, nor that any attempt was made to serve them until 18th June 2021 when service was effected.
Equally so, the Proof of Service by Plaintiff shows that Defendants were served with the case management statement OUT OF TIME. Defendant denies knowledge of this suit and the scheduled case management conference. Defendants allege that they had no knowledge of the case management statement, nor that any attempt was made to serve them until 25h June 2021 when service was effected.
Plaintiff did not request, nor did they obtain an order from this Court to allow extension of time to serve complaint and case statement as required by law.
Defendant contends that the service on her was improper and the Court should quash the purported service on her.
II.
LEGAL ARGUMENT
A. THE PURPORTED SERVICE OF THE COMPLAINT AND CASE MANAGEMENT STATEMETN IS NOT VALID AND SHOULD BE QUASHED
Code of Civil Procedure § 418.10 states in part:
“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her”.
Code of Civil Procedure § 3.110 (b) states in part:
“The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.”
Code of Civil Procedure § 3.725 (a) states in part:
“No later than 15 calendar days before the date set for the case management conference or review, each party must file a case management statement and serve it on all other parties in the case.”
As shown by the Proof of Service, Defendants were served out of time and with short notice to July 5th, 2021, when the case was scheduled to come up. Therefore, the purported service of the summons and complaint was not valid.
A party over whom the court lacks jurisdiction may bring a motion to quash service of summons without subjecting it to the jurisdiction of the Court. Id., Cal. Code Civ. Pro. §§ 418.10(a)(1). The court’s jurisdiction over a party commences from the time a summons is properly served on the party as provided in the Code of Civil Procedure; a court may not obtain jurisdiction over a party by means of an improperly served summons. Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant. Ruttenberg v. Ruttenberg (1997) 53 Cal. App. 4th 802, 808.
Because Plaintiff did not request, nor did they obtain an order from this Court to allow extension of time to serve complaint, the untimely service of the complaint did not constitute valid service and should be quashed. The fact that Defendant received the complaint does not preclude a motion to quash due to the fact that Plaintiff did not serve the summons and complaint in a statutorily authorized manner.
B. THE PLAINTIFF HAS THE BURDEN OF SHOWING THAT THE PURPORTED SERVICE OF THE SUMMONS AND COMPLAINT ON DEFENDANT IS VALID
Case law is clear that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.
Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.
A defendant is under no duty to respond to a defectively served summons and may stand mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court. Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.
Thus, Plaintiff now has the burden of showing that the purported service of the complaint on Defendant Maria A. Soto is valid.
III.
CONCLUSION
Based on the above, it is requested that defendant’s motion to quash service of the complaint be granted.
Dated: ____________________
Respectfully submitted,
By:__________________________
MARIA A SOTO,
Pro Se
Specially Appearing Defendant
Dated: ____________________
Respectfully submitted,
By:__________________________
DAVID J. WEINBERGER,
Pro Se
Specially Appearing Defendant
DECLARATION OF MARIA A. SOTO
I, MARIA A. SOTO declare as follows.
- I am over the age of 18 years and a party to this action. I have personal knowledge of the facts stated in this declaration, and if called as a witness, could and would testify competently to the truth of the facts as stated herein.
- The Complaint filed by Plaintiff shows that I was NOT served in a timely manner, when I was served on 18th June 2021.
- The Case Statement filed by Plaintiff shows that I was NOT served in a timely manner, when I was served on 25th June 2021.
- At no time was personal service on Defendant MARIA A. SOTO ever attempted by Plaintiffs.
- I had no knowledge that anyone was attempting to serve me and at all times I could have been reached for personal service at my residence.
- I respectfully request that the Court grant my motion to quash service of the complaint.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on 2nd July 2021 at Tulare, California.
__________________________________________
MARIA A. SOTO, Defendant
DECLARATION OF DAVID J. WEINBERGER
I, DAVID J. WEINBERGER declare as follows.
- I am over the age of 18 years and a party to this action. I have personal knowledge of the facts stated in this declaration, and if called as a witness, could and would testify competently to the truth of the facts as stated herein.
- The Complaint filed by Plaintiff shows that I was NOT served in a timely manner, when I was served on 18th June 2021.
- The Case Statement filed by Plaintiff shows that I was NOT served in a timely manner, when I was served on 25th June 2021.
- At no time was personal service on Defendant DAVID J. WEINBERGER ever attempted by Plaintiffs.
- I had no knowledge that anyone was attempting to serve me and at all times I could have been reached for personal service at my residence.
- I respectfully request that the Court grant my motion to quash service of the complaint.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on 2nd July 2021 at Tulare, California.
__________________________________________
DAVID J. WEINBERGER, Defendant
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