Case Number: BC518615    Hearing Date: July 10, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

JEFFREY LEE KAYE, )
) Case Number BC 518615
Plaintiff, )
) ORDER AFTER HEARING
V. )
) Date of Hearing:
CLAUDIA MURILLO, et al. ) July 10, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The motion of specially-appearing Defendant Claudia Murillo to quash service of the summons of Plaintiff Jeffrey Lee Kaye came on for hearing on July 10, 2014. Plaintiff Jeffrey Lee Kaye appeared through his counsel of record, _________________________. Defendant Claudia Murillo appeared her counsel of record _________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

Defendant Claudia Murillo’s motion to quash the service of the summons of Plaintiff Jeffrey Lee Kaye is DENIED.

The motion of Defendant Leticia Murillo to strike portions of the Complaint came on for hearing on July 10, 2014. Plaintiff Jeffrey Lee Kaye appeared through his counsel of record, _________________________. Defendant Leticia Murillo appeared through her counsel of record, _________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

Defendant Leticia Murillo’s motion to strike portions of the Complaint is GRANTED to the extent it seeks to strike Exhibit A of the Complaint, and DENIED as to the rest.

SO ORDERED this the _____ day of July, 2014.

________________________
RANDOLPH A. ROGERS
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

JEFFREY LEE KAYE, )
) Case Number BC 518615
Plaintiff, )
) STATEMENT OF DECISION
V. )
) Date of Hearing:
CLAUDIA MURILLO, et al. ) July 10, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of a vehicular accident occurring on January 24, 2012. The Complaint alleges that Defendant Claudia Murillo (“Defendant”), while under the influence of narcotics, collided into Plaintiff Jeffrey Lee Kaye’s (“Plaintiff”) vehicle on January 24, 2012. A police report was apparently filed.

2. Plaintiff filed the present suit on August 19, 2013, alleging negligence and reckless misconduct. The negligence cause of action also named Leticia Murillo as a co-defendant (“L. Murillo”).

3. The Summons was served at 43420 16th Street #14, Lancaster CA 93534, the address listed on Defendant’s driver’s license. Defendant thereafter filed a motion to quash on February 19, 2014, declaring this was not her residence. The motion was placed off calendar per minute order dated April 24, 2014.

4. The Summons was again served, this time, at 44101 27th St. W, Lancaster, CA 93536 (“Address”), the address apparently provided to the insurance carriers of the parties. Defendant filed a second motion to quash, and L. Murillo filed a motion to strike the traffic collision report attached as exhibit A and the paragraphs referencing it from the Complaint on April 9, 2014.

5. Plaintiff submitted the Declaration of H. Harry Kazakian on June 4, 2014, and opposition to both motions was filed on June 26, 2014.

6. Motion to Quash Service of Summons – Defendant moves to quash service of summons pursuant to CCP § 418.10. Without valid service of summons, the court never acquires jurisdiction over a defendant. Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant. CCP § 418.10(a)(1). CCP § 418.10 authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint. If the motion is timely made, “no act” by the party making such motion, “including filing an answer, demurrer or motion to strike,” shall be deemed a general appearance. CCP § 418.10(e)(1).

7. Defective Service of Summons – Code of Civil Procedure §415.20 provides that, where personal service cannot be affected with reasonable diligence, the 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 . . . , in the presence of a competent member of the household or a person apparently in charge . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and complaint . . . to the person to be served at the place where a copy of the summons and complaint were left.” CCP §415.20(b).

8. Defendant claims to have “not lived at [Address] for approximately five (5) years, nor [has she] considered that address to be [her] dwelling house, usual place of abode, usual place of business, or usual mailing address for approximately five (5) years.” Motion, Declaration of Claudia Murillo (“Murillo Declaration”) at ¶5. However, as noted above, this is Defendant’s second motion to quash service of summons arguing that an address served was not her home, business, or mail address. Defendant persists in refusing to provide any purported actual address to allow Plaintiff to effectuate proper service.

9. In contrast to Defendant’s position, supported only be a self-serving statement, Plaintiff submitted several independent indicators of Defendant’s address, including insurance claims reports and the address listed on her cosmetologist license. It bears noting that Plaintiff also attempted to serve Defendant at the address listed on her driver’s license and on the traffic collision report, which Defendant previously claimed was not her address. In light of the search outlined in the Declaration of H. Harry Kazakian, an address Defendant will admit to service for appears elusive at best.

10. In light of the corroborating evidence submitted by Plaintiff, and in the absence of any credible evidentiary submissions from the Defendant, it appears exceedingly likely that Defendant has been properly served, and the present motion and declaration are simply attempts to forestall litigation.

11. Accordingly, the motion of Defendant to quash the service of summons of Plaintiff is DENIED.

12. Standard for motion to strike – The proper procedure to attack false allegations in a pleading is a motion to strike. CCP §436(a). In granting a motion to strike made under Code of Civil Procedure § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP §436(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. CCP §431.10. The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP §436(b).

13. “The facts must be carefully distinguished from the evidence of the facts. The latter pertains to the trial, and has no place in the pleadings.” Green v. Palmer (1860) 15 Cal. 411, 415. Accordingly, Exhibit A, and the specific references to it in the Complaint are improper attempts to plead Plaintiff’s evidence. As such, they are properly subject to L. Murillo’s motion to strike.

14. However, ¶¶15 and 17 also contain factual allegations, including that “Defendant C. Murillo knew she was under the influence when she got into her vehicle prior to driving.” Such facts, without reference to Exhibit A, are not attempts to prove his case, but rather, attempt to lay out factual allegations relevant to Plaintiff’s cause of action. As such, only explicit references to Exhibit A are properly subject to being stricken.

15. Accordingly, L. Murillo’s motion to strike is GRANTED to the extent it seeks to strike Exhibit A of the Complaint and DENIED as to the rest.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

______________________________
RANDOLPH A. ROGERS, JUDGE