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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     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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28                                                                                 1
     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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28                                                                                             3
     MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUMMONS