Case Name: Matthew Wagoner, et al. v. Ruth Mejorado, et al.
Case No.: 18CV325398

I. Background

This is a nuisance action filed by homeowners Matthew Wagoner and Brenda Wagoner (collectively “Plaintiffs”) against their neighbors Ruth Mejorado, Mario Burnias, Armando Saldana (“Saldana”), and Jose Soto (collectively “Defendants”). As alleged in the Complaint, Defendants reside across the street from Plaintiffs in an upper-scale subdivision located in south San Jose. (Complaint, ¶¶2-3, 6-7.) Defendants have engaged in numerous activities constituting nuisances and/or violating the conditions, covenants and restrictions (“CC&Rs”) for their subdivision. (Id. at ¶¶ 10-21.) Among other things, they regularly allow their property to be occupied by more than fifteen adults, dump trash on their neighbors’ lots, park cars on the lawn of their property, and conduct activities resulting in excessive noise. (Id. at ¶ 9.)

Saldana now moves to quash service of the summons and complaint. Plaintiffs oppose the motion and submit a request for judicial notice in support. Plaintiffs also seek an award of sanctions against Saldana.

II. Request for Judicial Notice

Plaintiffs seek judicial notice of the proof of service of summons for Saldana (“POSS”) filed on April 5, 2018; an amendment to a temporary restraining order and order to show cause and a proof of service regarding that order filed in this case; and a declaration of Saldana filed in a civil harassment lawsuit. Plaintiffs’ request is made pursuant to Evidence Code section 452, subdivision (d), which permits judicial notice of court records.

All of the documents submitted for judicial notice are court records and are therefore proper subjects for judicial notice. However, with respect to the POSS, there is a discrepancy between the document submitted for judicial notice and the one filed with the Court. Specifically, the POSS submitted includes an attached declaration of due diligence while the one filed on April 5, 2018 does not. Thus, the Court can only take judicial notice of the POSS itself and not the attached declaration as it is not a court record. With that said, Plaintiffs’ omission of the declaration in the filed POSS was apparently the result of clerical error. Moreover, the declaration is highly relevant to resolving issues raised by the motion. Thus, the Court will consider the declaration as an item of evidence. As such, it is of no consequence it may not be judicially noticed.

As for the amendment to temporary restraining order, Plaintiffs present it for the purpose of establishing that Saldana is collaterally estopped from challenging service because, in a prior hearing in this case, the Court (Hon. Walsh) ruled that Saldana had been properly served with process. As will be discussed in more detail below, this argument is fundamentally flawed. Because the amended order is unnecessary to the disposition of this argument, the Court declines to take judicial notice of it. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a precondition to granting judicial notice is that the matter to be noticed is “necessary, helpful or relevant”].)

With respect to the proof of service regarding the temporary restraining order, the purpose for which it is submitted is unclear. Plaintiffs only cite this document once in a background section of their opposition and never discuss it in their analysis of the service issue. Thus, it is not helpful or necessary to resolving the issues raised by the motion and the Court will not take judicial notice of it.

Finally, regarding the declaration filed by Saldana in a separate lawsuit, Plaintiffs submit it to support that he resides at the address where service occurred. The issue of Saldana’s place of residence is raised in the motion to quash; thus, judicial notice of this declaration is proper. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [a precondition to taking judicial notice is that the matter to be noticed is relevant to an issue in the case].)

Accordingly, Plaintiffs’ request for judicial notice is GRANTED as to the POSS (excluding the declaration of due diligence that will otherwise be considered as evidence) and declaration of Saldana but DENIED as to the remainder of the documents.

III. Motion to Quash Service of Summons and Complaint

Proper service of the summons and complaint in compliance with the Code of Civil Procedure is a prerequisite to acquiring personal jurisdiction over a defendant. (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150.) When service of a summons is defective, a defendant may file a motion to quash service on the basis the court lacks personal jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The burden is on the plaintiff to establish the facts of jurisdiction by demonstrating the validity of the service by a preponderance of the evidence. (Boliah v. Super. Ct. (1999) 74 Cal.App.4th 984, 991; Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444.)

As a preliminary matter, Plaintiffs contend the issue of service was already ruled on by the Court (Hon. Walsh) in a prior hearing in this case and, thus, Saldana is collaterally estopped from challenging service. The Court first observes it is not especially clear whether Judge Walsh actually made a determination regarding the service of the summons itself as opposed to service of the temporary restraining order and order to show cause. (See Elliot Decl., Exh. 1, p. 3.) In any event, the collateral estoppel argument is misguided because it is predicated on a fundamental misunderstanding of the doctrine. Collateral estoppel is a doctrine that precludes relitigation of issues that were finally determined in a prior lawsuit. (Stolz v. Bank of Am. (1993) 15 Cal. App. 4th 217, 222; Bernhard v. Bank of Am. Nat. Tr. & Sav. Ass’n (1942) 19 Cal. 2d 807, 813.) This doctrine does not apply relative to decisions made in the same lawsuit. (See e.g., Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1226; In re Joshua J. (1995) 39 Cal.App.4th 984, 993.) Thus, the prior ruling addressing service in the temporary restraining order proceeding has no preclusive effect. The Court will therefore evaluate the propriety of service.

The record reflects Saldana was served by substitute service. Substitute service is an authorized form of service when personal service of a summons cannot be completed despite reasonably diligent efforts. (Code Civ. Proc., § 415.20, subd. (b).) It may be accomplished by leaving a copy of the summons and complaint at the defendant’s residence in the presence of a competent member of the household and thereafter mailing a copy to that same place. (Ibid.) “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as reasonable diligence.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750; see also Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Here, there is a declaration of diligence indicating that Plaintiffs initially attempted to personally serve Saldana at his dwelling at 2590 Bentley Ridge Drive, San Jose, California on three separate occasions. The first and second time there was no answer. On the third occasion, the process server was informed Saldana was not there at which point the summons and complaint were served on Anthony Saldana, a co-occupant. The POSS indicates the process server mailed a copy of the summons and complaint to that address the following day. Moreover, the record reflects Saldana previously identified his address as 2590 Bentley Ridge Drive, San Jose, California in a declaration he filed in another action. (See RJN, Exh. C.)

Thus, the POSS demonstrates that Saldana was served in compliance with subdivision (b) of Section 415.20. The “filing of a [code-compliant] proof of service creates a rebuttable presumption that the service was proper.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th at 1441-42.) Consequently, service was presumptively proper and Saldana bears the burden of rebutting this presumption.

Saldana does not present any evidence to rebut this presumption. His argument consists of a single paragraph without citation to any authority in which he first asserts he was out of the country when the summons was served. It is unclear what Saldana is arguing in the first instance. To the extent he is suggesting service is necessarily improper if attempted while a defendant is abroad, he cites no authority in support. As such, his position is unsubstantiated.

Next, Saldana contends the process server did not have proof he lived at 2590 Bentley Ridge Drive, San Jose, California, the address listed on the POSS. This argument is unsupported. At no point does Saldana affirmatively state this address is not his residence much less present evidence to this effect.

Finally, Saldana argues the process server had no court authorization to serve him in the manner it did. This contention lacks merit. First, it is not entirely clear what Saldana is arguing because his assertion is conclusory and underdeveloped. (See Mtn. at p. 3:12-13.) He also cites no authority, for example, stating that court authorization is required to serve a party by substitute service. Court authorization is only required when a party seeks to accomplish service by publication, which is inapplicable here. (See Code Civ. Proc., § 415.50.)

Thus, Saldana fails to rebut the presumption that service of the summons on him was proper. Accordingly, the motion to quash service of summons is DENIED.

IV. Plaintiffs’ Request for Sanctions
Plaintiffs request an award of sanctions against Saldana pursuant to Code of Civil Procedure section 128.5 (“Section 128.5”) on the basis the motion to quash is frivolous and devoid of merit. This request is procedurally deficient.

Section 128.5 mandates that “[a] motion for sanctions under this section shall be made separately from other motions or requests.” (Code Civ. Proc., § 128.5, subd. (f)(1)(A).) In addition, the statute contains a “safe harbor” provision requiring a party to first serve its sanctions motion and provide the responding party with 21 days to correct or withdraw the filing before the motion can be filed with the court. (Code Civ. Proc., § 128.5, subd. (f)(1)(B.)

Here, Plaintiffs did not file a separate motion for sanctions; rather, they merely include the request in their opposition. Further, Plaintiffs do not indicate they complied with the “safe harbor” provision. Because their request for sanctions is defective, it is DENIED.

The Court shall prepare the Order.