Case Number: BC529681 Hearing Date: April 08, 2014 Dept: 34

Moving Party: Defendant Sheldon Caughey (“Caughey”)

Resp. Party: Plaintiff Ronald B. Labowe (“plaintiff”); defendants and cross-complainants Stephen Passy and Ilyana Passy (“Passy”)

Caughey’s motion to quash service of summons is DENIED.

Plaintiff requests the Court take judicial notice of two items that are already part of the court file. Judicial notice is not necessary since these items are contained in the record for this action.

The Court takes judicial notice of Passy Exhibits A-C and E-H. The Court declines to take judicial notice of Passy’s exhibit D. (See Evid. Code, § 452(c), (d), (h).)

BACKGROUND:

Plaintiff, in his capacity as an escrow holder, commenced this interpleader action against defendants on 12/5/13. The action pertains to the purchase of a boat where plaintiff acted as the escrow holder and received the sum of $864,500.00 for the purchase. There is a dispute as to $60,000.00 of these funds.

On 1/31/14, Stephen and Ilyana Passy filed a cross-complaint against Caughey for: (1) breach of fiduciary duty; (2) recission; (3) fraud; (4) civil extortion; (5) abuse of process; (6) declaratory relief; (7) negligence; and (8) breach of contract.

On 2/25/14, default was entered against Caughey on plaintiff’s complaint.

ANALYSIS:

The Court denies Caughey’s motion on both procedural and substantive grounds. Procedurally, the motion is not timely. Further, as to the motion to quash the complaint, Caughey is in default, and hence the motion can not be considered. Substantively, the Court finds that service was proper.

Procedural issues:

The motion is Untimely:

Caughey’s motion to quash was not timely filed or served. The motion was served by facsimile and filed on 3/20/14 – just 12 court days before the hearing. Moving papers must be filed and served at least 16 court days before a hearing, and service by facsimile extends this notice period by two calendar days. (Code Civ. Proc., § 1005(b).) Moreover, plaintiff presents evidence that the parties did not agree to accept service via facsimile. (See Code Civ. Proc., § 1013(e); Labowe Decl., ¶ 2.) The motion may be denied for this reason alone.

Caughey is in default on the Complaint:

Moreover, to the extent that Caughey seeks to quash service of the complaint, the Court notes that Caughey is currently in default. “Entry of defendant’s default instantaneously cuts off its right to appear in the action. The defendant is ‘out of court.’ It has no right to participate in the proceedings until either (a) its default is set aside (in which event, it may respond to the complaint), or (b) a default judgment is entered (in which event, it may appeal).” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 5.6.) “Entry of default ousts the court of jurisdiction to consider any motion other than a motion for relief from default.” (Id., ¶ 5.7.) “If defendant did not get actual notice of the proceedings in time to file a motion to quash, he may move the court to set aside the default and any judgment entered thereon.” (Id., ¶ 3:397. Therefore, the Court does not have jurisdiction to hear the instant motion.

Substantive issues

Even if the Court were to consider the motion on the merits, it would still be denied. Caughey argues that he was not properly served with the complaint or cross-complaint. Complainants have the initial burden to evidence valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439 40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 4:428.) ” ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.’ ” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) A filed proof of service creates a rebuttable presumption that service was proper, if it complies with applicable statutory requirements. (Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 795.)

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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 address other than a United States Postal Service post office box, 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(b).) With substituted service, there must be a showing that the items “cannot with reasonable diligence be personally delivered.” (Ibid.) The reasonable diligence requirement is usually satisfied by two or three attempts to personally serve defendants at a proper place. (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2012) ¶ 4:198 [citing Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389].)

The proofs of service state that the complaint and cross-complaint were served by substituted service on a Martha Doe, employee at Commercial Mail Receiving Agency, on 12/23/13 (complaint) and 2/10/14 (cross-complaint). The proofs of service include declarations of diligence and declarations of mailing.

The only evidence provided in support of the instant motion is Caughey’s declaration that he was not personally served with the summons or complaint, the he has resided and worked in Mexico for five years, and that the subject of this lawsuit was addressed in agreements formed in Mexico. (Caughey Decl., ¶¶ 2, 4-5.) Caughey does not declare that the address served was not his usual mailing address and, indeed, he appears to acknowledge that he maintains a “drop box” in San Ysidro, California. (See Motion, p. 6:15-17.) Though Caughey states that he has been residing in Mexico, there is no evidence that he has not also maintained a residence in California. Plaintiff provides evidence that Caughey has significant contacts with California and that he may maintain addresses in California.For instance, California’s Department of Consumer Affairs lists Caughey’s San Ysidro address as his address of record for his California therapist license, and Caughey used this same address for to a bank when wiring money to his account. (See Lipofsky Decl., ¶ 4, Exhs. C-E; Passy Decl. ¶ 12, Exh. F.)

The Court disregards Exhs. 1-8 that were attached to Caughey’s motion for several reasons. First, Caughey has failed to authenticate these items with a declaration stating that they are true and correct copies of what he purports them to be. Second, some of the exhibits are in Spanish, and there is no translation provided. Third, none of the exhibits are mentioned or cited in the body of Caughey’s Opposition. And lastly, even if the Court were to consider these exhibits, they only show that Caughey was in Mexico at various times during the past several years; they do not show that he does not maintain a residence or address in California.

Because Caughey does not establish that he could not have been served in California, Caughey has not sufficiently established that plaintiff and Passy had to comply with the Hague Convention for service on him.

Caughey’s motion to quash service of summons is DENIED.