BARBARA NEWMAN and IVAN NEWMAN
XXX Selby
Los Angeles, CA 900xx
310-839-7645
Defendant in Pro Per
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
central District
111 North Hill street
Los angeles, ca 90012
TO EACH PARTY AND THE ATTORNEY OF RECORD FOR EACH PARTY:
YOU ARE HEREBY NOTIFIED THAT ON . . . . . . at . . . . . . . . . . . . in department No. 16 of this Court located at 111 North Hill Street, Los Angeles. Defendants Barbara Newman and Ivan Newman will move the court for an order quashing the service of the summons in the action on said defendants. Said will be made upon the ground that the summons were not properly served upon said defendants. Said motion will be based on this Notice, the points and authorities set forth herein-below, the attached declaration of . . . . . . . . . , and the complete file and records of this action.
Date______________
_________________________________________
Ivan Newman Barbara Newman
MEMORANDUM OF POINTS AND AUTHORITIES
This case a claim for commissions by the Plaintiffs against the Defendants who leased property thirteen months after the termination on a brokerage agreement. Plaintiffs attorneys are claiming service of summons upon Defendants by personal and substituted service. This motion is being put forward on the grounds that Plaintiffs have failed to comply with the relevant statutes for personal and substitute service and that the service of the summons be quashed.
STATEMENT OF FACTS
In the early afternoon of September 2, 2005, Defendant Ivan Newman (Ivan) noticed a older heavy set man with a cane walking around his property at 3232 Selby in Los Angeles. Ivan saw this gentleman walk to his vehicle which was parked up the street about 100 feet away. He yelled to him through a closed dark screen door and a partially open solid wooden door "can I help you." The man yelled back that he was looking for Barbara Newman (Barbara). Ivan yelled back that, she did not live there and closed the door.
In fact Barbara has not lived at the Selby address for over ten years. She has been living separate and apart in Palm Springs for this period of time. Plaintiff Green is aware that Barbara lives in Palm Springs, because he has communicated with and visited her there. This fact is evidenced in Plaintiff Nevil Green’s last page of Exhibit A of this complaint. In the "FAX MEMO" dated 09/05/02, TO: Barbara Newman, CC: Ivan Newman, From: J. Nevil Green it shows Barbara’s Fax number as being the Palm Springs area code : 760. Also on the third line from the bottom of this memo, Plaintiff Green writes: "2. Palm Springs CSC Convention is 9/24 – 9/26 I plan to be there 9/26 for "Deal Making" only." Nonetheless, plaintiff was attempting to serve her at the Selby address.
Shortly after closing the door, Ivan heard a very load pounding on the front door. He could tell that who ever it was, was angry. Ivan did not answer the door and the caller did not identify who he was or the purpose of his call. The man left. Ivan later heard the screen door swinging back and forth from the blowing wind. When it was investigated, an empty box with two copies of this complaint underneath it were discoved.
Ivan knew that this was not a proper service and called Plaintiff Green’s attorney, Mario M. Menanno on the next business day, September 6, 2005. Mr. Menanno accused Ivan of trying to evade service, stated that the service was proper and that he intended to file the proof of service.
AUTHORITY FOR MOTION
CCP 415.10. A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. . . .
CCP 415.20. (b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
CCP 418.10. (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 for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.
(e) (1) Notwithstanding Section 1014, no act by a party who makes a
motion under this section, including filing an answer, demurrer, or
motion to strike constitutes an appearance, unless the court denies
the motion made under this section.
Schering Corp. v. Superior Court , 52 Cal.App.3d 737, 741 "Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfies the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met."
ARGUMENT
The service of the summons should be quashed, because Plaintiff did not comply with statutory requirements of service of the summons as required by the rule of Schering Corp, supra. Both Ivan and Barbara have notice of the suit, but more than mere notice is required. Leaving a complaint and summons under a box at someone’s front door without informing the person to be served of the contents of the process is not proper service.
Here, the process server never announced what the contents of the papers were and did not know who if the person to whom the papers were to be delivered was even in the house. The process server never knew who told him that Barbara Newman did not live at the Selby address. The process server was 100 feet away and Ivan did not open the dark screen door or the solid wooden door wide enough to be identified. The process server merely guessed. Such service does not meet the statutory requirements for personal service per CCP 415.10..
Here, the Plaintiff is attempting substituted service per CCP 415.20. (b) of Barbara Newman by merely leaving the summons and complaint on the door step of her estranged husband’s residence. Plaintiff Green did this even knowing that Barbara lived in Palm Springs and not a the Selby address. He knew that they were living apart because when he faxed the "fax memo" in exhibit A of this complain he did so to fax numbers in different area codes.
CONCLUSION
The Court should grant Defendants’ motion to quash the service of the summons in this case. Although, Defendant’s have notice, Plaintiff did not comply with the statutory requirements for service of the summons. Mere difficulty in serving a defendant with process does not justify failure to comply with the statutory requirements. Plaintiff could have attempted service by mail with acknowledgement, first. This would have shifted the cost of attempts at personal process to the Defendant’s. If personal service could not be completed, then service by publication would have served the statutory requirements and those costs would have been born by the Defendants.
Dated _______________
________________ _________________
IVAN NEWMAN Barbara Newman