RIVERWALK HOLDINGS LTD. v. ANTHONY VICTOR III GUANCIONE
Case No.: 1-12-CV-217973
DATE: April 29, 2014
TIME: 9:00 a.m.
DEPT.: 3

The various requests for judicial notice filed by Cross-Complainants on Oct. 2, 4 and 10, 2013 “in support of” their “Motion to Strike Cross-Defendant’s Motion to Quash” or “Motion to Strike Cross-Defendant’s Answer as a Motion to Quash” are DENIED. A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal App 4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal 4th 415, 422 fn. 2.

The Motion to Quash Service of Summons by Cross-Defendant Richard K. Davis, specially appearing pursuant to CCP §418.10(a)(1), is GRANTED as unopposed on the grounds of invalid summons, improper service and lack of personal jurisdiction. When a challenge to jurisdiction by way of a motion to quash is filed by a non-resident party, the plaintiff or cross-complainant bears the burden of proof by a preponderance of the evidence to demonstrate the defendant has sufficient minimum contacts with the forum state to justify jurisdiction. Elkman v. National States Ins. Co. (2009) 173 Cal App 4th 1305, 1313; DVI, Inc v. Sup. Ct. (2002) 104 Cal App 4th 1080, 1090. As no opposition to this motion has been filed that burden has not been met.

The “Motion to Strike Cross-Defendant Richard K. Davis’s Motion to Quash Service” by Cross-Complainants is DENIED. This is not a valid motion under California law. Pursuant to CCP §435 a motion to strike may only be brought against a “pleading,” defined in CCP §435(a) as “a demurrer, answer, complaint, or cross-complaint.” A motion to quash service is not an answer. See CCP §431.30.

The Motion to Quash Service of Summons by Cross-Defendant Richard Hartnack, specially appearing pursuant to CCP §418.10(a)(1), is also GRANTED as unopposed on the grounds of invalid summons, improper service and lack of personal jurisdiction. When a challenge to jurisdiction by way of a motion to quash is filed by a non-resident party, the plaintiff or cross-complainant bears the burden of proof by a preponderance of the evidence to demonstrate the defendant has sufficient minimum contacts with the forum state to justify jurisdiction. Elkman v. National States Ins. Co. (2009) 173 Cal App 4th 1305, 1313; DVI, Inc v. Sup. Ct. (2002) 104 Cal App 4th 1080, 1090. As no opposition to this motion has been filed that burden has not been met.