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Jeremy J. Alberts (SBN 273290) Law Office of Jeremy J. Alberts 214 N. Malden Ave. Fullerton, CA 92832 (949) 774-0406 Attorney for Defendant, Simon Locke
5 6 7 8 9 FOR THE COUNTY OF LOS ANGELES, NORTHWEST DISTRICT 10 11 12 13 14 v. 15 16 17 18 19 20 21 TO PLAINTIFF AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 12, 2011, at 8:30 am, or as soon thereafter as the matter can be heard in Department P of the above entitled court, located at 6230 Sylmar Ave., Van Nuys, California, 91401, Defendant Simon Locke will specially appear pursuant to CCP § 418.10 to move the Court for an order quashing service of the summons and complaint herein on the ground that Defendant has not been validly served with process and hence this court has no jurisdiction over Defendant. This motion will be based on this Notice, the attached Memorandum, the attached Declaration /// Simon Locke, an Individual, Defendant. Hearing Date: September 12, 2011 Hearing Time: 8:30 am Department No.: P Case No.: 11B04849 Sectores Property Group, LLC, Plaintiff, NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS; SUPPORTING MEMORANDUM; DECLARATION OF SIMON LOCKE; PROPOSED ORDER SUPERIOR COURT OF THE STATE OF CALIFORNIA
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-1NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS
and such other and further evidence.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
of Simon Locke. both oral and documentary. DATED: May 17. the court records in this case. 2012 JEREMY J. Simon Locke
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. ALBERTS Attorney for Defendant. as may be presented at time of the hearing.
2011. Plaintiff never made an Application to Post with the Court and never received an order authorizing such. As of today’s date Defendant has not received a copy of the summons and complaint in the mail. Silverstein’s process server mailed the Summons and Complaint on July 25. Mr. It seems to have become a pattern and practice of his firm to serve unlawful detainers by posting without authorization by the Court. This was the first time Defendant learned of this action. In all cases there is some issue of defective service. She went to retrieve the documents and learned that they were an unlawful detainer summons and complaint. This is not Plaintiff Counsel Mr. Silverstein obtained default based on the July 25th mailing date. 2011 (the papers left in Defendant’s door jamb are not legible enough to read the filing date). Simon Locke (“Defendant”). Los Angeles County Superior Court Case No. Silverstein does not mail the Summons and Complain to the residence. Defendant’s wife notice while leaving the residence that there was a roll of papers wedged between the doorknob and the jamb of their main door. The mailed documents were never received by the defendants so they assumed a response date of 15 days after July 27th. Mr.
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-3NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS
. STATEMENT OF FACTS On or about August 12. That same day. Laurel Hess. Mr. Plaintiff. This office has several other unrelated cases with Steven Silverstein as opposing counsel. Sectores Property Group. There was no Application and Order to Post attached to the summons as Plaintiff never had authorization to serve by posting. LLC (“Plaintiff”). A copy of the defendant’s husband’s declaration is attached to the Request for Judicial Notice as Exhibit “A”. filed a complaint for unlawful detainer against this specially appearing Defendant. Silverstein’s first or second time serving the Summons and Complaint in this defective manner. The day earlier. In the case of Southland Homes v. To further complicate the process for Defendant. 2011 and posted the documents on their door on July 27. Silverstein thereafter claims personal service and obtains a default before Defendant’s true response date of 15 days after mailing the Summons and Complaint.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
MEMORANDUM OF POINTS AND AUTHORTIES I. 11C02466. Mr.
This Court should not ratify Plaintiff’s defective service but instead require Plaintiff to follow the simple steps outlined in Code of Civil Procedure Section 415 et seq. Defendant brought a motion to vacate default and quash service of the summons which was granted by the court. Silverstein obtained a default judgment on the defendant based on personal service. Silverstein’s process server taped a copy of the Summons and Complaint to the defendant’s door and never mailed a copy to the residence. Even though Defendant now has actual knowledge of the pending action. which is paraphrased below. Mr. A copy of the defendant’s declaration is attached to the Request for Judicial Notice as Exhibit “B”. In the case of Orange Coast LA. Mr. Silverstein’s process server served Defendant’s daughter (who identified herself as such) and claimed personal service on the Proof of Service. A copy of the defendant’s declaration is attached to the Request for Judicial Notice as Exhibit “C”. 302011-00492323.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
In the case of Southland Homes v. 11C02840. this Court has not yet acquired jurisdiction over Defendant due to failure of Plaintiff to properly serve the summons and complaint. This notice does not eliminate the need for Plaintiff to follow the Code of Civil Procedure regarding service of a summons. On the first day possible. LLC v. Luis Garcia. Linda Doyel. Orange County Superior Court Case No. In Southern California. LEGAL ARGUMENT A. Service of the Summons and Complaint upon Defendant was improper so this Court does not have jurisdiction over Defendant to proceed. DEFENDANT MAY FILE A MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT FOR LACK OF PERSONAL JURISDICTION. Silverstein’s process server claimed personal service and was given a default before the defendant could respond (they assumed they would have 15 days due to posting of the Summons and Complaint). the Court should quash such service and require Plaintiff to either personally serve the Summons and Complaint or make an Application to the Court to serve by posting. II. Los Angeles County Case No. Mr. Therefore. -4NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS
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. Plaintiff’s attorneys are continuously taking shortcuts when serving the summons because they get away with it. The defendant in that case is bringing a motion to set aside default and quash service that will be heard later this week. Mr.
who shall be informed of the contents thereof.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
CCP § 418. (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her . at least 18 years of age. 1. or usual mailing address other than a Untied States Postal Service post office box. . there has been no substitute service. usual place of abode. as shown by the attached Declaration of Simon Locke.20. in the presence of a competent member of the household: “(b) If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served . SUBSTITUTE SERVICE WAS MADE WITHOUT FIRST ATTEMPTING PERSONAL SERVICE CCP § 415. as shown in the attached Declaration of Simon Locke. THIS COURT HAS NO JURISDICTION OVER THE DEFENDANT MAKING THIS MOTION IN THAT THE DEFENDANT HAS NOT BEEN PROPERLY SERVED.” B. THERE HAS BEEN NO PERSONAL SERVICE ON DEFENDANT
CCP § 415. and by thereafter mailing a copy of the summons and of the complaint (by first-class mail. 3. . . . . .10 provides in pertinent part as follows: “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.thService of a summons in this manner is deemed complete on the 10 day after the mailing. postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint was left. may serve and file a notice of motion .” CCP § 415. .” In this case. subdivision (b) provides that a copy of the summons and complaint may be left at the defendant’s household. 2. on or before the last day of his or her time to plead or within any further time that the court may for good cause allow. usual place of business. In this case.20(b). a summons may be served by leaving a copy of the summons and of the complaint at such person’s dwelling house.10 provides in pertinent part as follows: “(a) A defendant. there has been no personal service.
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. THERE HAS BEEN NO SERVICE BY POSTING AND MAILING ON DEFENDANT.
The second defect is particularly important as the date of mailing dictates Defendant’s time to respond to the Complaint.. Defendant’s Motion to Quash Service of the Summons and Complaint should be granted.” [CCP § 415.45 provides for service of summons and complaint in an unlawful detainer action by posting and mailing: “(a) A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication and that: . Similar Court decisions in the past have only caused Plaintiff’s counsel to continue taking such shortcuts with other cases. III.45(a).1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
CCP § 415. DATED: May 17. b) The court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address. Defendant is left guessing as to their deadline to respond. they should have delivery confirmation. 2012 Respectfully submitted. However.. For the foregoing reasons. Without that mailing. Plaintiff would be required to send the document by certified mail so if Plaintiff contends that mailing was completed.
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. and 2) Plaintiff did not mail a copy of the Summons and Complaint to the residence. Plaintiff presumably attempted to effect service under this code section by posting and mailing a copy of the Summons and Complaint. (b)] In this case. their execution of service was defective on two grounds: 1) they failed to obtain permission from the Court to perform such service (which would have likely been denied as Plaintiff did not make a reasonable attempt to personally serve Defendant in the one day since they filed the Complaint). CONCLUSION This Court should not ratify Plaintiff’s defective service by forcing a response upon Defendant as they now have actual knowledge of the action.
ALBERTS Attorney for Defendant.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
JEREMY J. Simon Locke
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When I went to answer it. and if called as a witness could competently testify thereto. I was using the restroom when I heard one knock at the door. the undersigned. 2. declare as follows: 1. I learned that this action
was pending when I found a copy of the Summons and Complaint posted to my door on August 17. the Summons and Complaint were taped to my door. I was never served with a summons and complaint in this action. 4. I never received a copy in the mail. I am a Defendant in the above-entitled lawsuit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 2012 SIMON LOCKE
23 24 25 26 27 28 -1DECLARATION OF DEFENDANT IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS
. I have not been evading service of process and at all times could have been reached for
personal service at my residence and place of business if such service had been attempted.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
DECLARATION OF DEFENDANT SIMON LOCKE IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT
I. DATED: May 17. I have firsthand knowledge of the foregoing
facts. 2011. 3.
subdivisions (c) and (d). Case No. Defendant. NORTHWEST DISTRICT Sectores Property Group. an Individual. Exhibit 1: Declaration in support of Motion to Quash filed in LASC Case No.: 11B04849 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT’S MOTION TO QUASH PLAINTIFF’S COMPLAINT Hearing Date: September 12. LLC Trustee. ALBERTS Attorney for Defendant. Alberts 214 N. Malden Ave. Orange Coast LA. Defendant. 30-201100492323.: P
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JEREMY J. LLC. Simon Locke
-1REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO QUASH
. v.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
Jeremy J. 11C02466. 2011 Hearing Time: 8:30 am Department No. 11C02840. Simon Locke
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES. and Exhibit 3: Declaration in support of Motion to Quash filed in LASC Case No. Alberts (SBN 273290) Law Office of Jeremy J. Fullerton. TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD: Pursuant to Evidence Code sections 451 and 452. 2012 Respectfully submitted. Plaintiff. CA 92832 (949) 774-0406 Attorney for Defendant. Exhibit 2: Declaration in support of Motion to Quash filed in OCSC Case No. Simon Locke. Simon Locke respectfully requests this Court to take judicial notice of the following documents in support of his Motion to Quash service of Plaintiff’s Verified Complaint. DATED: May 17.
2011 Hearing Time: 8:30 am Department No. and all evidence presented by the parties. After considering the motion. the Court finds that Defendant’s Motion to Quash should be and hereby is GRANTED. along with the response and replies.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
Jeremy J. Malden Ave.: P
TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD: Before the Court is Defendant’s Motion to Quash Service of the Summons and Complaint.
Case No. CA 92832 (949) 774-0406 Attorney for Defendant. LLC Trustee. Simon Locke. LLC. Plaintiff. Fullerton. Defendant. 2011 ______________________________________
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Judge of the Superior Court
. Orange Coast LA. v.: 11B04849 [PROPOSED] ORDER Hearing Date: September 12. Alberts (SBN 273290) Law Office of Jeremy J. Alberts 214 N. NORTHWEST DISTRICT
Sectores Property Group. Signed this _______ day of _____________. Simon Locke
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES. IT IS SO ORDERED. an Individual.
and the transmission was reported as complete and without error. Declaration of Simon Locke. 2012 at Fullerton. State of California. Memorandum of Points and Authorities. Under that practice it would be deposited with the U.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
PROOF OF SERVICE STATE OF CALIFORNIA. BY ELECTRONIC TRANSMISSION – I transmitted a PDF version of this document by electronic mail to the party(s) identified on the attached service list using the email address(es) indicated. On May 17.
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PROOF OF SERVICE
. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after the date of deposit for mailing in affidavit. I am over the age of 18 and not a party to the within action.. Suite G Tustin. COUNTY OF LOS ANGELES I am employed in the County of Orange. I am aware that on motion of the party served. I served the foregoing documents described as Notice of Motion to Quash Service of Summons. My business address is 214 N. California. Malden Ave.S. 2012. CA 92832. and Proposed Order on all interest parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: Steven Silverstein 14351 Redhill Ave. California. BY FACSIMILE – I faxed said document to the office(s) of the addressee(s) shown above. They are deposited with a facility regularly maintained for receipt on the same day in the ordinary course of business. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. BY OVERNIGHT DELIVERY – I deposited such envelope for collection and delivery with delivery fees paid or provided for in accordance with ordinary business practices. Fullerton. BY PERSONAL SERVICE – I caused such envelope to be delivered. I am “readily familiar” with the firm’s practice of collection and processing packages for overnight delivery. California in the ordinary course of business.. The envelope was mailed with postage thereon fully prepaid. CA 92780 BY MAIL – I deposited such envelope in the mail at Fullerton. Postal Service on that same day with postage thereon fully prepaid at Fullerton. Executed on May 17.