Case Name: Gloria Cabral v. Jeffrey Allen Mentzos, et al.
Case No.: 18CV332400

I. Background

This is a wrongful foreclosure lawsuit brought by plaintiff Gloria Cabral (“Plaintiff”) against defendants Jeffrey Allen Mentzos (“Mentzos”), Kurt Anthony Miller (“Miller”), Jeanne Miller, Iva Miller, and Zdenka Kolarik (“Kolarik”).

Plaintiff owned real property located at 3474 Gila Drive in San Jose, California (the “Property”). (Compl., ¶ 18.) In September 2007, Plaintiff obtained a loan of $100,000 from nonparty Rong Tu that was secured by a deed of trust for the Property. (Compl., ¶¶ 19–21.) She alleges Miller, a disbarred former attorney who married Rong Tu at some point in time, forged and recorded a substitution of trustee purporting to substitute Mentzos, an old friend from law school, as trustee. (Compl., ¶¶ 22–23.) Although Rong Tu was the beneficiary of the deed of trust, Miller subsequently directed Mentzos to record a notice of default and commence foreclosure proceedings. (Compl., ¶¶ 24–26.)

In January 2018, Mentzos recorded a notice of trustee’s sale, which sale took place on July 18, 2018. (Compl., ¶¶ 27–31.) Plaintiff alleges the notice of trustee’s sale contained inaccurate information; she also claims there were irregularities in the sale process, including that it went forward despite a bankruptcy stay. (Compl., ¶¶ 19–32, 35–36.) Although not especially clear, it appears Miller purportedly obtained title to the Property at the trustee’s sale with the help of his daughters, Iva and Jeanne Miller, and his ex-wife, Kolarik. (Compl., ¶¶ 17, 33.) Miller thereafter posted a three-day notice at the Property requiring Plaintiff to vacate the premises. (Compl., ¶ 33.)

Plaintiff asserts causes of action against the defendants for: (1) fraud; (2) wrongful foreclosure; (3) “to set aside trustee’s sale”; (4) “to void or nullify trustee’s deed upon sale…”; (5) “to void or nullify defective notices…”; (6) quiet title; (7) slander of title; (8) violation of California’s unfair competition law; (9) injunctive relief; (10) declaratory relief; and (11) unjust enrichment. (Compl. at p. 1.)

Currently before the Court is a motion by Mentzos, Miller, and Kolarik (collectively, “Defendants”) to quash service of summons on the ground the Court lacks personal jurisdiction over them. The motion is accompanied by requests for judicial notice.

II. Preliminary Procedural Matters

Defendants present their motion in a disorganized fashion through a series of amended and supplemental filings. Consequently, it is necessary to determine whether there is a proper and complete set of moving papers before the Court in the first instance.

It is well established that “the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion….” (Cal. Rules of Court, rule 3.1112(a).) “The papers [ ] may either be filed as separate documents or combined in one or more documents if the party filing a combined pleading specifies these items separately in the caption of the combined pleading.” (Cal. Rules of Court, rule 3.1112(c).) Irrespective of whether the moving party combines these papers, he or she must present all three required components. (Cal. Rules of Court, rule 3.1112(a).) It is illustrative that, for example, “[t]he court may construe the absence of a memorandum as an admission that the motion [ ] is not meritorious and cause for its denial….” (Cal. Rules of Court, rule 3.1113(a).)

In August 2018, Defendants filed a “notice of and motion…to quash service of summons….” (Orig. Not. at p. 1:14–16.) Although the document’s caption reflects it is merely a combined notice of hearing and motion, Defendants buried therein a purported memorandum of points and authorities that asserts, in a conclusory manner, that they have not been properly served. (Orig. Not. at pp. 3–4.) Defendants’ combined pleading is improper because it does not comport with rule 3.1112(c) of the California Rules of Court. But the more significant problem is the lack of clarity created by their subsequent filings.

Defendants next filed a combined document identified as their “amended notice of motion and motion…; amended memorandum of points and authorities.” (Am. Not. at p. 1:11–14.) Unlike Defendants’ first combined pleading, they did properly caption their amended document to reflect that it contained a notice of hearing, motion, and memorandum of points and authorities. Defendants thereafter filed a “supplement” to this amended document that consists solely of a combined notice of hearing and motion without any supplemental memorandum of points and authorities. (Supp. Not. at p. 1:11–14.) Both the amended and supplemental documents are accompanied by requests for judicial notice.

The filing of a hodgepodge of papers in this manner obfuscates the universe of documents and issues that must be addressed by the opposing party and the Court. Additionally, the Court is not aware of any authority permitting the serial presentation of issues and arguments in this manner. Nevertheless, because Defendants timely filed this assortment of papers and Plaintiff does not object, the Court will consider their motion with the following clarifications.

The Court first clarifies that, despite the series of filings, the nature of Defendants’ motion remains unchanged. “A motion must: (1) Identify the party or parties bringing the motion; (2) Name the parties to whom it is addressed; [and] (3) Briefly state the basis for the motion and the relief sought….” (Cal. Rules of Court, rule 3.1112(d).) In all three motions, Defendants identify themselves as the moving parties, identify Plaintiff as the party to whom the motion is directed, and state they seek an order quashing service of summons on the ground the Court lacks personal jurisdiction over them.

Given the fundamental components of Defendants’ motion remain unchanged, it is unclear why they amended and supplemented that portion of their moving papers. It appears the sole purpose of the amended and supplemental filings was to list additional facts about service that are disputed. Defendants’ inclusion of these additional disputed facts in the portion of their moving papers consisting of the notice of hearing and motion was arguably misguided. In any event, under the circumstances, the Court treats the operative memorandum of points and authorities as that which is included in the amended document and considers the additional factual disputes raised in the supplemental document as though they were raised in that memorandum. Additionally, the Court will consider both of Defendants’ requests for judicial notice. With that said, counsel shall present materials in a clear and code-compliant manner going forward.

Turning to the requests for judicial notice, Defendants’ requests are directed exclusively to court records from this action and Plaintiff’s bankruptcy action. A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) In doing so, a court does not take judicial notice of the truth of statements or allegations in the records; rather, it takes judicial notice of the fact that the records say what they say. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3; accord Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) With that said, a matter must be relevant to a material issue in order for a court to take judicial notice of it. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) None of the requested court records are relevant. The proofs of service encompassed by Defendants’ initial request are not those at issue for the purpose of this motion. The Court’s previous orders regarding applications for provisional relief in this action are not material to the issues presented. Additionally, the records from the bankruptcy action that are the subject of their supplemental request are wholly immaterial. Because the court records are irrelevant, they are not proper subjects of judicial notice. Also, Defendants appear to be requesting judicial notice of the records for the purpose of relying on the truth of statements therein, which is improper. For these reasons, Defendants’ requests for judicial notice are DENIED.

III. Discussion

A defendant may move to quash service of summons on the ground the court lacks personal jurisdiction over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) In opposition to the motion, “the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction.” (ViaView, Inc. v. Retzlaff (“ViaView”) (2016) 1 Cal.App.5th 198, 209–10.)

“Personal jurisdiction over a [ ] defendant depends upon the existence of essentially two criteria: first, a basis for jurisdiction must exist [ ]; second, given that basis for jurisdiction, jurisdiction must be acquired by service of process in [ ] compliance with the requirements of our service statutes.” (Ziller Electronics Lab GmbH v. Super. Ct. (1988) 206 Cal.App.3d 1222, 1229, original italics.)

Here, Defendants do not dispute there is a basis for the exercise of personal jurisdiction. They solely dispute whether the Court acquired personal jurisdiction over them through service of process in conformity with the Code of Civil Procedure. Thus, here, “‘the burden is on the plaintiff to prove the existence of jurisdiction by proving [ ] the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–40.)

Plaintiff first argues Defendants cannot challenge the sufficiency of service because they generally appeared in this action. It is true that a defendant that makes a general appearance in an action “relinquishes all objections based on lack of personal jurisdiction or defective process or service of process.” (ViaView, supra, 1 Cal.App.5th at p. 210 [internal quotation marks and citations omitted].) But Defendants have not made a general appearance. “A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed.” (Ibid. [internal quotation marks and citations omitted].) “Under [Code of Civil Procedure] section 418.10, subdivision (e), ‘no act by a party who makes a [motion to quash], including filing an answer, demurrer, or motion to strike,’ before or concurrently with taking that action will be deemed a general appearance until litigation of the motion to quash is finally resolved adversely to the defendant.” (ViaView, supra, 1 Cal.App.5th at pp. 213–14, original italics.) Defendants first appeared in this action by filing their motion to quash, and so none of the actions they have taken since, namely filing oppositions to Plaintiff’s applications for a temporary restraining order and a preliminary injunction, constitute general appearances. Consequently, Defendants have not waived the right to challenge the sufficiency of service of process by generally appearing in this action.

Plaintiff also presents several proofs of service of summons and argues they show that, after Defendants filed their motion, she properly served them. The “filing of a [code-compliant] proof of service creates a rebuttable presumption that the service was proper.” (Dill, supra, 24 Cal.App.4th at pp. 1441–42.) Thus, the Court considers whether the proofs of service presented by Plaintiff reflect she served Defendants in conformity with the Code of Civil Procedure.

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” (Code Civ. Proc., § 415.10.) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served [ ] 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.” (Code Civ. Proc., § 415.20, subd. (b).) “Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (Code Civ. Proc., § 415.20, subd. (c).)

With respect to Miller, the proof of service reflects a registered process server most recently attempted to personally serve him at his home—3525 East Cortez Street in West Covina, California—three separate times from August 24–26, 2018. The first and second attempts at service were unsuccessful because no one answered the door. On August 26, 2018, a female resident answered the door and stated Miller was not home. The process server left the documents with this resident and mailed a copy of the same the next day.

This proof of service reflects Plaintiff effectuated substitute service in conformity with Code of Civil Procedure section 415.20 because the process server left the summons and complaint, among other things, at Miller’s usual dwelling place with a competent member of the household and thereafter mailed copies of the same.

To be sure, although Defendants focus on previous attempts at personal service and not the substitute service effectuated more recently, the evidence they present does not support the conclusion that Plaintiff did not properly serve Miller through substitute service. For example, none of the evidence presented by Defendants reflects the address where service was effectuated was not Miller’s usual dwelling place or abode.

For these reasons, the Court concludes Plaintiff served Miller in a code-compliant manner such that personal jurisdiction has been acquired over him.

Next, although not especially clear, it appears Plaintiff’s position is that she properly served Kolarik and Mentzos under Code of Civil Procedure section 415.20, subdivision (c) by leaving the summons and complaint at the commercial mail receiving agencies where they have private mailboxes.

As for Kolarik in particular, a process server first attempted to serve her at her home—3753 Ridgeview Court in Morgan Hill, California—on August 18 and 19, 2018. At first, no one answered the door. The next day, although an unrestrained dog prevented the process server from reaching the front door, two individuals came out of the house and spoke with the process server. They refused to provide any information. Consequently, the next day, the process server went to Kolarik’s known business address, particularly the UPS Store at 305 Vineyard Town Center in Morgan Hill, California. An employee, Shania Valdez, confirmed Kolarik received mail there, and so the process server left the documents with her.

As for Mentzos, the proof of service reflects a process server left the summons and complaint with Eric Venerable, the owner of a commercial mail receiving agency known as 24HR Anytime Mail in West Covina, California.

But the problem with Plaintiff’s reliance on these proofs of service without more is that they do not contain information sufficient to show code-compliant service. First, as for Kolarik, the evidence does not show the private mailbox was the only address reasonably known for her sufficient to justify service at her private mailbox. Second, with respect to both Kolarik and Mentzos, the proofs of service do not reflect service was completed in conformity with Business and Profession Code section 17538.5.

“Upon receipt of any process for any mailbox service customer, the [commercial mail receiving agency] owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer’s mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer.” (Bus. & Prof. Code, § 17538.5, subd. (d)(1).) The agency “shall obtain a certificate of mailing in connection with the mailing of the documents.” (Bus. & Prof. Code, § 17538.5, subd. (d)(1).) Ultimately, if the “owner or operator has complied with the foregoing requirements and provides to any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing, the [ ] owner or operator shall have no further liability in connection with acting as agent for service of process for its mail receiving service customer.” (Bus. & Prof. Code, § 17538.5, subd. (d)(1).)

Here, Plaintiff does not present a declaration of service from the UPS Store or 24HR Anytime Mail sufficient to establish that service was actually completed in conformity with Business & Professions Code section 17538.5, subdivision (d)(1), and in turn, Code of Civil Procedure section 415.20, subdivision (c). Accordingly, Plaintiff’s evidence is insufficient to establish she properly served Kolarik and Mentzos as necessary for the Court to acquire personal jurisdiction over them.

In conclusion, Plaintiff demonstrates only that she properly served Miller but not Kolarik and Mentzos. Accordingly, Defendants’ motion is GRANTED to the extent it is brought by Kolarik and Mentzos and DENIED to the extent it is brought by Miller.