Motion to Quash

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Jeremy J. Alberts (SBN 273290)Law Office of Jeremy J. Alberts214 N. Malden Ave.Fullerton, CA 92832(949) 774-0406

Attorney for Defendant, Simon Locke

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, NORTHWEST DISTRICT

Sectores Property Group, LLC,

Plaintiff,

v.

Simon Locke, an Individual,

Defendant.

Case No.: 11B04849

NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS; SUPPORTING MEMORANDUM; DECLARATION OF Simon Locke; PROPOSED ORDER

Hearing Date: September 12, 2011Hearing Time: 8:30 amDepartment No.: P

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

///

- 1 -NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS

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of Simon Locke, the court records in this case, and such other and further evidence, both oral and

documentary, as may be presented at time of the hearing.

DATED: April 7, 2023

JEREMY J. ALBERTS Attorney for Defendant, Simon Locke


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MEMORANDUM OF POINTS AND AUTHORTIES

I.

STATEMENT OF FACTS

On or about August 12, 2011 (the papers left in Defendant’s door jamb are not legible enough

to read the filing date), Plaintiff, Sectores Property Group, LLC (“Plaintiff”), filed a complaint for

unlawful detainer against this specially appearing Defendant, Simon Locke (“Defendant”). That

same day, 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. She went to retrieve the documents and

learned that they were an unlawful detainer summons and complaint.

This was the first time Defendant learned of this action. There was no Application and Order

to Post attached to the summons as Plaintiff never had authorization to serve by posting. 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.

This is not Plaintiff Counsel Mr. Silverstein’s first or second time serving the Summons and

Complaint in this defective manner. It seems to have become a pattern and practice of his firm to

serve unlawful detainers by posting without authorization by the Court. Mr. Silverstein thereafter

claims personal service and obtains a default before Defendant’s true response date of 15 days after

mailing the Summons and Complaint. To further complicate the process for Defendant, Mr.

Silverstein does not mail the Summons and Complain to the residence.

This office has several other unrelated cases with Steven Silverstein as opposing counsel. In

all cases there is some issue of defective service. In the case of Southland Homes v. Laurel Hess, Los

Angeles County Superior Court Case No. 11C02466, Mr. Silverstein’s process server mailed the

Summons and Complaint on July 25, 2011 and posted the documents on their door on July 27, 2011.

The mailed documents were never received by the defendants so they assumed a response date of 15

days after July 27th. The day earlier, Mr. Silverstein obtained default based on the July 25th mailing

date. A copy of the defendant’s husband’s declaration is attached to the Request for Judicial Notice

as Exhibit “A”.


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In the case of Southland Homes v. Linda Doyel, Orange County Superior Court Case No. 30-

2011-00492323, Mr. Silverstein’s process server served Defendant’s daughter (who identified herself

as such) and claimed personal service on the Proof of Service. On the first day possible, Mr.

Silverstein obtained a default judgment on the defendant based on personal service. Defendant

brought a motion to vacate default and quash service of the summons which was granted by the court.

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, LLC v. Luis Garcia, Los Angeles County Case No.

11C02840, Mr. 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. Mr. 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 defendant in that case is

bringing a motion to set aside default and quash service that will be heard later this week. A copy of

the defendant’s declaration is attached to the Request for Judicial Notice as Exhibit “C”.

Even though Defendant now has actual knowledge of the pending action, 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. In Southern California, Plaintiff’s attorneys are continuously taking

shortcuts when serving the summons because they get away with it. 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, which is paraphrased below.

Service of the Summons and Complaint upon Defendant was improper so this Court does not

have jurisdiction over Defendant to proceed. Therefore, 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.

LEGAL ARGUMENT

A. DEFENDANT MAY FILE A MOTION TO QUASH SERVICE OF SUMMONS

AND COMPLAINT FOR LACK OF PERSONAL JURISDICTION.


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CCP § 418.10 provides in pertinent part as follows:

“(a) A defendant, 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, may serve and file a notice of motion . . .(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her . . .”

B. THIS COURT HAS NO JURISDICTION OVER THE DEFENDANT MAKING

THIS MOTION IN THAT THE DEFENDANT HAS NOT BEEN PROPERLY

SERVED.

1. THERE HAS BEEN NO PERSONAL SERVICE ON DEFENDANT

CCP § 415.10 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.”

In this case, as shown by the attached Declaration of Simon Locke, there has been no personal

service.

2. SUBSTITUTE SERVICE WAS MADE WITHOUT FIRST ATTEMPTING

PERSONAL SERVICE

CCP § 415.20, subdivision (b) provides that a copy of the summons and complaint may be

left at the defendant’s household, 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 . . . , a summons may be served by leaving a copy of the summons and of the complaint at such person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a Untied 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 of the complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” CCP § 415.20(b).

In this case, as shown in the attached Declaration of Simon Locke, there has been no

substitute service.

3. THERE HAS BEEN NO SERVICE BY POSTING AND MAILING ON

DEFENDANT.


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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:. . .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.” [CCP § 415.45(a), (b)]

In this case, Plaintiff presumably attempted to effect service under this code section by

posting and mailing a copy of the Summons and Complaint. However, 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); and 2) Plaintiff did not mail a copy of

the Summons and Complaint to the residence. Plaintiff would be required to send the document by

certified mail so if Plaintiff contends that mailing was completed, they should have delivery

confirmation. The second defect is particularly important as the date of mailing dictates Defendant’s

time to respond to the Complaint. Without that mailing, Defendant is left guessing as to their

deadline to respond.

III.

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. Similar Court decisions in the past have

only caused Plaintiff’s counsel to continue taking such shortcuts with other cases. For the foregoing

reasons, Defendant’s Motion to Quash Service of the Summons and Complaint should be granted.

DATED: April 7, 2023 Respectfully submitted,


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DECLARATION OF DEFENDANT Simon Locke

IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

I, the undersigned, declare as follows:

1. I am a Defendant in the above-entitled lawsuit. I have firsthand knowledge of the foregoing

facts, and if called as a witness could competently testify thereto.

2. I was never served with a summons and complaint in this action. I learned that this action

was pending when I found a copy of the Summons and Complaint posted to my door on August 17,

2011. I was using the restroom when I heard one knock at the door. When I went to answer it, the

Summons and Complaint were taped to my door.

3. I never received a copy in the mail.

4. 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.

I declare under penalty of perjury under the laws of the State of California that the foregoing

is true and correct.

DATED: April 7, 2023

Simon Locke

- 1 -DECLARATION OF DEFENDANT

IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS

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Sectores Property Group, LLC, Orange Coast

LA, LLC Trustee,

Plaintiff,

v.


Defendant.

Case No.: 11B04849

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT’S MOTION TO QUASH PLAINTIFF’S COMPLAINT


TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD:

Pursuant to Evidence Code sections 451 and 452, subdivisions (c) and (d), Defendant, 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.

Exhibit 1: Declaration in support of Motion to Quash filed in LASC Case No. 11C02466;

Exhibit 2: Declaration in support of Motion to Quash filed in OCSC Case No. 30-2011-

00492323; and

Exhibit 3: Declaration in support of Motion to Quash filed in LASC Case No. 11C02840.

DATED: April 7, 2023 Respectfully submitted,


- 1 -REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO QUASH

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Sectores Property Group, LLC, Orange Coast

LA, LLC Trustee,

Plaintiff,

v.


Defendant.

Case No.: 11B04849

[PROPOSED] ORDER


TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD:

Before the Court is Defendant’s Motion to Quash Service of the Summons and Complaint.

After considering the motion, along with the response and replies, and all evidence presented by the

parties, the Court finds that Defendant’s Motion to Quash should be and hereby is GRANTED.

IT IS SO ORDERED.

Signed this _______ day of _____________, 2011______________________________________

Judge of the Superior Court

[PROPOSED] ORDER

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PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Orange, State of California. I am over the age of 18 and not a

party to the within action. My business address is 214 N. Malden Ave., Fullerton, CA 92832.

On April 7, 2023, I served the foregoing documents described as Notice of Motion to Quash

Service of Summons, Memorandum of Points and Authorities, Declaration of Simon Locke, and

Proposed Order on all interest parties in this action by placing a true copy thereof enclosed in sealed

envelopes addressed as follows:

Steven Silverstein14351 Redhill Ave., Suite GTustin, CA 92780

BY MAIL – I deposited such envelope in the mail at Fullerton, California. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Fullerton, California in the ordinary course of business. I am aware that on motion of the party served, 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.

BY PERSONAL SERVICE – I caused such envelope to be delivered.

BY FACSIMILE – I faxed said document to the office(s) of the addressee(s) shown above, and the transmission was reported as complete and without error.

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.

BY OVERNIGHT DELIVERY – I deposited such envelope for collection and delivery with delivery fees paid or provided for in accordance with ordinary business practices. I am “readily familiar” with the firm’s practice of collection and processing packages for overnight delivery. They are deposited with a facility regularly maintained for receipt on the same day in the ordinary course of business.

I declare under penalty of perjury under the laws of the State of California that the foregoing

is true and correct.

Executed on April 7, 2023 at Fullerton, California.

Will Malone

PROOF OF SERVICE

Documents

Motion to Quash