2012-00128637-CU-CL

Northstar Education Finance, Inc. vs. Timothy S. Brown

Nature of Proceeding: Motion to Quash Service of Summons

Filed By: Brown, Timothy S.

Defendant Timothy Brown’s motion to quash summons and complaint is denied.

In this consumer action in which Plaintiff seeks to collect a debt based on a student
loan, Defendant moves to quash the summons pursuant to CCP § 418.10(a) on the
basis that Plaintiff failed to properly serve him with the summons and complaint,
violated the Fair Debt Collection Act by filing suit in Sacramento when he resides in
San Diego, and because the complaint was served more than eight months after the
suit was filed in violation of CRC Rule 3.110(b).

A motion to quash must be brought on or before the last day to plead to the complaint.
(CCP § 418.10(a).) Here, the complaint was served by substitute service (though
Defendant contends improperly) on March 26, 2013 at what Defendant says was his
former address in Sacramento. Default and default judgment were entered on July 3,
2013. The time to bring a motion to quash has passed. As pointed out by Plaintiff in
its opposition and as indicated in relevant treatises, where an allegedly defective
summons deprived a defendant of actual notice of the proceedings in time to raise the
defect prior to default, the defendant may move to set aside the default and default
judgment pursuant to CCP § 473.5 so that a motion to quash service of summons can
be considered. (Weil & Brown, Civ. Proc. Before Trial. Ch. 4:429.) A motion pursuant
to CCP § 473.5(a) must be made no later than two years after notice of entry of default
or default judgment, whichever is earlier. (CCP § 473.5.) Thus, to reach the motion to
quash, Defendant would need to show that service did not result in actual notice of the
action in time to defend the action and that the lack of notice was not cause by
defendant’s own avoidance of service or inexcusable neglect. (CCP § 473.5(b).)
Given that Defendant did not make such a motion, the Court does not consider
Plaintiff’s opposition arguments that he could not make such a showing. Nor could the
Court construe the motion as one pursuant to CCP § 473.5 as Defendant made no
mention of seeking to set aside the default and default judgment. As defendant’s
default has been entered by the Clerk and not yet set aside, the Court has lost
jurisdiction to address any motion by the defaulted defendant other than a motion to
vacate entry of default. W. A. Rose Co. v. Municipal Court for Oakland-Piedmont
Judicial Dist. (1959) 176 Cal. App. 2d 67, 72.

In addition, the Court takes no action on Plaintiff’s willingness to stipulate to change
venue to the county where Defendant currently resides. If the parties are willing to
stipulate to such a transfer, they are free to do so.

As a result, the motion to quash is denied, without prejudice to Defendant filing a
motion to set aside the default and default judgment pursuant to CCP § 473.5 so that a
motion to quash could properly be considered by the Court.

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.