Document for Jason Neel vs United States Real Estate Corporation, et al

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                                1   Cody Molica
     1029 North Road, #175
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     Westfield, MA 01085
 3   (619) 693-7896
     cmolica11@gmail.com
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     Cross-Defendant in Pro Per
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 7                                SUPERIOR COURT OF CALIFORNIA
 8                                     COUNTY OF SONOMA
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     JASON NEEL                                   Case No.: 22CV01758
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                   Plaintiff,
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     vs.                                          DEFENDANT CODY MOLICA’S NOTICE
12                                                OF MOTION AND MOTION TO QUASH
     SUPERIOR LOAN SERVICING; ASSET               SERVICE OF SUMMONS, DECLARATION
13                                                MEMORANDUM OF POINTS AND
     DEFAULT MANAGEMENT, INC., UNITED
14                                                AUTHORITIES IN SUPPORT (CCP § 418.10
     STATES REAL ESTATE CORPORATION;              (A)
15   CNA EQUITIES GROUP, LLC; AND
     RUSHMYFILE, BUSINESS ENTITY FORM             DEPT. 5
16   UNKNOWN, and VIGIL REAL ESTATE,              ACTION FILED 08/16/2022
17   BUSINESS ENTITY FORM UNKNOWN and             HON. TIMOTHY VOLKMANN
     DOES 1-50, inclusive, Defendants.
18                                                HEARING: 5/25/23
                                                  TIME: 9AM
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     UNITED STATES REAL ESTATE                    UNLIMITED CIVIL ACTION
20   CORPORATION,     Cross-Complainant,
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            v.
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23   JASON NEEL, CNA EQUITY GROUP, INC, a
     professional corporation, RUSHMYFILE, INC,
24   a California corporation, CODY MOLICA, and
25   ROES 1-50, inclusive,

26                        Cross-Defendants.
27

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     NOTICE OF MOTION TO QUASH SUMMONS AGAINST CROSS DEFENDANT CODY MOLICA
 1          To: UNITED STATES REAL ESTATE CORPORATION, Cross-Complainant, and to
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     Jeffrey Lowenthal, their respective attorney of record: NOTICE IS HEREBY GIVEN that Cross-
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     Defendant CODY MOLICA appears specially to make this motion only and, so specially
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     appearing, hereby does and will, on Thursday, May 25, 2023, at 9:00 AM, or as soon thereafter
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 6   as the matter may be heard, in dept. 5 of this court, located at 701 Ocean Street, Room 110, Santa

 7   Cruz, CA 95060, move for an order quashing the service of summons on this cross-defendant. The
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     motion will be made on the grounds that the court lacks jurisdiction over the person of this cross-
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     defendant. The motion will be based on this notice of motion, on the declaration of CODY
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     MOLICA and the supporting memorandum served and filed herewith, on the records and file
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12   herein, and on such evidence as may be presented at the hearing of the motion.

13          Date: February 23, 2023
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                                           ___/S/ Cody Molica_________________
16                                         Cody Molica,
                                           Cross-defendant in Pro Per
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     NOTICE OF MOTION TO QUASH SUMMONS AGAINST CROSS DEFENDANT CODY MOLICA
 1   Cody Molica
     1029 North Road, #175
 2
     Westfield, MA 01085
 3   (619) 693-7896
     cmolica11@gmail.com
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     Defendant in Pro Per
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 7                               SUPERIOR COURT OF CALIFORNIA
 8                                    COUNTY OF SANTA CRUZ
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     JASON NEEL                                   Case No.: 22CV01758
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                   Plaintiff,
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     vs.                                          DECLARATION OF CODY MOLICA IN
12                                                SUPPORT OF DEFENDANT CODY
     SUPERIOR LOAN SERVICING; ASSET               MOLICA’S NOTICE OF MOTION AND
13                                                MOTION TO QUASH SERVICE OF
     DEFAULT MANAGEMENT, INC., UNITED
14                                                SUMMONS
     STATES REAL ESTATE CORPORATION;
15   CNA EQUITIES GROUP, LLC; AND                 DEPT. 5
     RUSHMYFILE, BUSINESS ENTITY FORM             ACTION FILED 08/16/2022
16   UNKNOWN, and VIGIL REAL ESTATE,              HON. TIMOTHY VOLKMANN
17   BUSINESS ENTITY FORM UNKNOWN and
     DOES 1-50, inclusive, Defendants.            HEARING: 5/25/23
18                                                TIME: 9AM
19                                                UNLIMITED CIVIL ACTION
     UNITED STATES REAL ESTATE
20   CORPORATION,     Cross-Complainant,
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            v.
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23   JASON NEEL, CNA EQUITY GROUP, INC, a
     professional corporation, RUSHMYFILE, INC,
24   a California corporation, CODY MOLICA, and
25   ROES 1-50, inclusive,

26                          Cross-Defendants.
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28                                                                                1
     DECLARATION IN SUPPORT OF MOTION TO QUASH SUMMONS
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            I, Cody Molica, declares as follows:
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            1. I am the cross-defendant in this action by way of a cross-complaint brought by
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                UNITED STATES REAL ESTATE CORPORATION.
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 6          2. I have not since September of 2022 resided at 4360 Stony Point Road, Santa Rosa,

 7              California. This is the address cited as my residence in the proof of service filed in this
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                case on January 17, 2023.
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            3. I was erroneously served at this address by substitute service during January of 2023.
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12                  I declare under penalty of perjury under the laws of the state of California the

13   forgoing is true and correct.
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            February 24, 2023
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                                                           CODY /S/ MOLICA
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18                                                         Cody Molica, Cross-Defendant

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     DECLARATION IN SUPPORT OF MOTION TO QUASH SUMMONS
 1   Cody Molica
     1029 North Road, #175
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     Westfield, MA 01085
 3   (619) 693-7896
     cmolica11@gmail.com
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     Defendant in Pro Per
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 7                               SUPERIOR COURT OF CALIFORNIA
 8                                    COUNTY OF SANTA CRUZ
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     JASON NEEL                                   Case No.: 22CV01758
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                   Plaintiff,
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     vs.                                          MEMORANDUM OF POINTS AND
12                                                AUTHORITIES IN SUPPORT OF
     SUPERIOR LOAN SERVICING; ASSET               DEFENDANT CODY MOLICA’S NOTICE
13                                                OF MOTION AND MOTION TO QUASH
     DEFAULT MANAGEMENT, INC., UNITED
14                                                SERVICE OF SUMMONS
     STATES REAL ESTATE CORPORATION;
15   CNA EQUITIES GROUP, LLC; AND                 DEPT. 5
     RUSHMYFILE, BUSINESS ENTITY FORM             ACTION FILED 08/16/2022
16   UNKNOWN, and VIGIL REAL ESTATE,              HON. TIMOTHY VOLKMANN
17   BUSINESS ENTITY FORM UNKNOWN and
     DOES 1-50, inclusive, Defendants.            HEARING: 5/25/23
18                                                TIME: 9AM
19                                                UNLIMITED CIVIL ACTION
     UNITED STATES REAL ESTATE
20   CORPORATION,     Cross-Complainant,
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            v.
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23   JASON NEEL, CNA EQUITY GROUP, INC, a
     professional corporation, RUSHMYFILE, INC,
24   a California corporation, CODY MOLICA, and
25   ROES 1-50, inclusive,

26                          Cross-Defendants.
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     MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUMMONS
 1                                          Service is Defective
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            On 1/17/2023, attorney for defendant and cross complainant filed a proof of service of
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     summons in this action documenting service of process against the movant and cross-defendant
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     Cody Molica. Substitute service was made on a “Jane Doe” occupant residing in Santa Rosa,
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 6   California.   The process server’s attached declaration of diligence states another occupant

 7   informed the server in his first service attempt that Cody Molica did not live here.
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            As the attached declaration substantiates, movant does not reside in Santa Rosa at all, the
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     service of summons was improperly documented to the court as being complete and this motion
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     should be granted quashing the defective substitute service upon the cross-defendant Cody Molica.
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            “On or before the last day of his or her time to plead, or within such further time as the
13          court may for good cause allow, a defendant may serve and file a notice of motion to
            quash service of summons on the ground the court lacks jurisdiction over him or her
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            (Code Civ. Proc. § 418.10(a)(1)).”
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           California law makes strict compliance with the applicable statutes pertaining to service a
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     necessary element in order to complete substitute service. A court has no authority to render
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18   judgment on the basis of substituted or constructive service of the summons when statutory

19   requirements have not been strictly complied with (Summers v. McClanahan (2006) 140 Cal. App.
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     4th 403, 412, 44 Cal. Rptr. 3d 338 (improper service on personal manager); Zirbes v. Stratton
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     (1986) 187 Cal. App. 3d 1407, 1416, 232 Cal. Rptr. 653 (substituted service); Eagle Electric Mfg.
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     Co. v. Keener (1966) 247 Cal. App. 2d 246, 251, 55 Cal. Rptr. 444.
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24        In order to effect proper substitute service upon a defendant, plaintiff must comply with the

25   applicable statute which requires after reasonable attempts to serve the defendant personally at his
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     residence, serving the documents upon another co-occupant.        What has transpired however is
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     cross-complainant served cross-defendant Molica at his prior residence, upon an unknown
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     MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUMMONS
 1   occupant. Because the statute was not strictly complied with, this motion to quash should be
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     granted.
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            February 24, 2023
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 6                                                    CODY /S/ MOLICA

 7                                                    Cody Molica, Cross-Defendant
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     MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUMMONS