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1 Jeffrey H. Lowenthal (State Bar No. 111763)
Edward Egan Smith (State Bar No. 169792)
2 Matthew W. Delbridge (State Bar No. 343636)
STEYER LOWENTHAL BOODROOKAS
3 ALVAREZ & SMITH LLP
235 Pine Street, 15th Floor
4 San Francisco, California 94104
Telephone: (415) 421-3400
5 Facsimile: (415) 421-2234
E-mail: jlowenthal@steyerlaw.com
6 esmith@steyerlaw.com
mdelbridge@steyerlaw.com
7
Attorneys for Defendant and Cross-Complainant
8 United States Real Estate Corporation
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF SANTA CRUZ
11
12
JASON NEEL, Case No. 22CV01758
13
Plaintiff, UNITED STATES REAL ESTATE
14 v. CORPORATION’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
15 SUPERIOR LOAN SERVICING, ASSET OPPOSITION TO CODY MOLICA’S
DEFAULT MANAGEMENT, INC., MOTION TO QUASH SERVICE OF
16 UNITED STATES REAL ESTATE SUMMONS
CORPORATION; CNA EQUITIES
17 GROUP, LLC; RUSHMYFILE, Date: May 25, 2023
BUSINESS ENTITY FORM UNKNOWN, Time: 8:30 a.m.
18 and VIGIL REAL ESTATE, BUSINESS Dept: 5
ENTITY FORM UNKNOWN; and DOES Judge: Hon. Timothy Volkmann
19 1 through 100, inclusive,
Action Filed: August 10, 2021 [Alameda Superior]
20 Defendants. Trial Date: Not Assigned
21
UNITED STATES REAL ESTATE
22 CORPORATION,
23 Cross-Complainant,
v.
24
JASON NEEL, CNA EQUITY GROUP,
25 INC., a professional corporation,
RUSHMYFILE, INC., a California
26 corporation, CODY MOLICA; and ROES
1 through 100, inclusive,
27
Defendants.
28
UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS
2019548.3 - NATC.JNEEL
1 I. INTRODUCTION
2 The Court should deny Cross-Defendant Cody Molica’s (“Molica”) Motion to Quash
3 Service of Summons of defendant and cross-complainant United States Real Estate Corporation’s
4 (“USREC”) cross-complaint (“Motion to Quash”), which is based solely on the alleged ground
5 that Molica no longer lives at the address where USREC effectuated substitute service, because
6 the record establishes that the address in question was, in fact, a “dwelling house” or “usual place
7 of abode” of Molica at the time USREC effectuated substitute service, which is all that is required
8 under the statute. See Code Civ. Proc. § 415.20(b). Although Molica argues that he moved from
9 the home where USREC effected service in September 2022, USREC’s process server was
10 advised by other residents of the home as late as October and December 2022 that Molica was not
11 home but “comes and goes” and, moreover, Molica’s timely filing of the Motion to Quash is itself
12 proof that USREC’s substitute service provided him with actual notice.
13 II. ARGUMENT
14 A. SUBSTITUTE SERVICE ON A DEFENDANT’S “DWELLING HOUSE” OR
“USUAL PLACE OF ABODE” UNDER CODE OF CIVIL PROCEDURE
15 SECTION 415.20 IS A FACT SPECIFIC INQUIRY, LIBERALLY CONSTRUED
16 California law allows for substitute service of summons if a party is unable to effectuate
17 personal service:
If a copy of the summons and complaint cannot with reasonable
18 diligence be personally delivered to the person to be served . . . a
summons may be served leaving a copy of the summons and
19 complaint at the person’s dwelling house, usual place of abode . . . in
the presence of a competent member of the household . . . at least 18
20 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
21 first-class mail, postage prepaid to the person to be served at the place
where a copy of the summons and complaint were left.
22
Code Civ. Proc. § 415.20(b). Two or three attempts to personally serve a defendant at a proper
23
place ordinarily qualifies as enough reasonable diligence to attempt substitute service.
24
Kremerman v. White (2021) 71 Cal.App.5th 358, 373; Bd. Of Trustees of the Leland Stanford
25
Junior University v. Ham (2013) 216 Cal.App.4th 330, 337, cert. denied, 134 S. Ct. 1035 (2014).
26
California service of process statues are “to be liberally construed to effectuate service and
27
uphold jurisdiction if actual notice has been received by the defendant.” Bein v. Brechtel-Jochim
28
2
UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS
2019548.3 - NATC.JNEEL
1 Group, Inc. (1992) 6 Cal.App.4th 1387, 1392. This liberal construction “extends to substitute
2 service as well as to personal service.” Id.; see also Stafford v. Mach (1998) 64 Cal.App.4th 1174,
3 1182 (traditional notions of fair play and substantial justice in due process are satisfied if the
4 substitute service used is reasonably calculated to give defendant actual notice and an opportunity
5 to be heard). A party may effectuate substitute service with a John or Jane Doe co-resident of a
6 defendant. See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 182-85 (proof of service upon
7 John Doe, co-resident at address publicly registered by defendant, instead of true name of person
8 given summons does not void proof of service on its face; service by leaving papers with apparent
9 co-resident at address publicly registered by defendant is method reasonably calculated to achieve
10 actual service).
11 The Judicial Council comment to Section 415.20(b) states that “The terms ‘dwelling
12 house’ and ‘usual place of abode’ take their meaning from the Federal Rules.” Judicial Council
13 Comment to Code Civ. Proc. § 415.20(b). Under the Federal Rules, “The determination of
14 whether a particular residence counts as a party’s place of usual abode is ‘highly fact-specific.’”
15 Craigslist, Inc. v. Hubert (N.D.Cal. 2011) 278 F.R.D. 510, 515 (citation removed). “[A] person
16 may ‘have more than one dwelling house or usual place of abode.’” Id. (citation removed).
17 Indeed, courts have interpreted the Federal Rules to hold that service at a defendant’s prior
18 residence is effective where the facts establish that the defendant recently lived there. Thus, in
19 Karllson v. Rabinowitz (4th Cir. 1963) 318 F.2d 666, the court held that service was sufficiently
20 effectuated by leaving a copy of a summons and complaint with a defendant’s wife at a Maryland
21 house where the defendant had lived prior to moving to Arizona where he had bought a house
22 intending never to return to Maryland. Likewise, in Blackhawk Heating & Plumbing Co. v.
23 Turner (D. Ariz. 1970) 50 F.R.D. 144, the court upheld service of process on a defendant when
24 the summons was left with the defendant’s daughter in an apartment where the defendant had
25 lived until shortly before service was made and the defendant had made no effort to leave a
26 forwarding address.
27 ///
28 ///
3
UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS
2019548.3 - NATC.JNEEL
1 B. SUBSTITUTE SERVICE ON MOLICA AT HIS STONY POINT ROAD ADDRESS
IN SANTA ROSA WAS PROPER
2
Here, USREC caused Molica to be served with the Summons and Cross-Complaint
3
(“Summons”) by a registered California process server at 4360 Stony Point Road, Santa Rosa,
4
California 95407 (“Property”) through substituted service pursuant to Code of Civil Procedure
5
section 415.20(b). As reflected in the Proof of Service on file in this action, after seven visits to
6
the Property attempting to serve Molica personally, on January 12, 2023, the process server left
7
the Summons at the Property in the presence of an approximately 60-year-old female “Jane Doe”
8
and that same day mailed copies of the Summons by first-class mail, postage prepaid, addressed
9
to Molica at the Property. Walton Decl., ¶¶10-18. Multiple public records reflect that the
10
Property was and remains a registered address for Molica and, in fact, the Property is listed as
11
Molica’s address on his California issued Driver License. Delbridge Decl. ¶¶7-8, 11, Exs. 1-2, 5.
12
Although Molica now argues in his Motion to Quash that service of the Summons was
13
ineffective because he had moved from the Property in September 2022, USREC’s process server
14
was advised by the “Jane Doe” resident of the Property three times in October 2022 – on October
15
11, 12 and 17 – simply that Molica was “not in” at the time, and advised by a “John Doe” resident
16
of the Property as late as December 17, 2022, that John Doe was not certain when Molica might
17
be home because he “comes and goes.” Walton Decl. ¶¶5-7, 10.1 Thereafter, the process server
18
made six more attempts to serve the Summons on Molica personally before effecting substitute
19
service on January 12, 2023.
20
In his Motion to Quash and accompanying Declaration, Molica does not indicate where he
21
allegedly went after moving from the Property or where he currently resides, but he appears to
22
suggest through a Westfield, Massachusetts address of record on those pleadings that he now
23
resides out of state. Importantly, however, the address Molica lists on his Motion to Quash, 1029
24
North Road, #175, Westfield, MA 01085, is a private mailbox at “The Package Store,” a
25
commercial packing and shipping store. Delbridge Decl. ¶¶ 9, 10, Ex. 3 and 4. Although, in fact,
26
27
1
The service attempts in October 2022 were for a Deposition Subpoena for business records in
28 this case. Walton Decl. ¶¶3-7.
4
UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS
2019548.3 - NATC.JNEEL
1 located in Massachusetts, The Package Store provides “digital” mailbox services that allow
2 customers to receive their mail via digital scans without having ever to physically visit the store
3 or even live in the same area. Delbridge Decl. ¶ 10, Ex. 4.
4 Because contrary to Molica’s sole argument in support of his Motion to Quash, that he
5 moved from the Property in September 2022, two other residents confirmed that he continued to
6 “come and go” from the Property long after that, USREC’s substitute service on Molica at the
7 Property – the address showing for him in the public record to this day – was valid and effective.
8 Indeed, notwithstanding Molica’s arguments, as his timely filed Motion to Quash confirms,
9 USREC’s substitute service was effective to provide Molica with actual notice of these
10 proceedings and the opportunity to respond to USREC’s Cross-Complaint and be heard by this
11 Court. Given this record, and because California’s statutes governing service of process must be
12 “liberally construed to effectuate service and uphold jurisdiction if actual notice has been received
13 by the defendant,” (Bein, supra, 6 Cal.App.4th at 1392), Molica’s arguments should be rejected.
14 III. CONCLUSION
15 Because USREC properly effectuated substitute service on Molica on January 12, 2023,
16 the Court should deny Molica’s Motion to Quash and order Molica to file a responsive pleading
17 to USREC’s Cross-Complaint.
18
Dated: May 11, 2023 STEYER LOWENTHAL BOODROOKAS
19 ALVAREZ & SMITH LLP
20
By:______________________________
21 Jeffrey H. Lowenthal
Edward Egan Smith
22 Matthew W. Delbridge
Attorneys for Defendant and Cross-
23 Complainant
United States Real Estate Corporation
24
25
26
27
28
5
UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS
2019548.3 - NATC.JNEEL
Preview
1 Jeffrey H. Lowenthal (State Bar No. 111763) Edward Egan Smith (State Bar No. 169792) 2 Matthew W. Delbridge (State Bar No. 343636) STEYER LOWENTHAL BOODROOKAS 3 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 4 San Francisco, California 94104 Telephone: (415) 421-3400 5 Facsimile: (415) 421-2234 E-mail: jlowenthal@steyerlaw.com 6 esmith@steyerlaw.com mdelbridge@steyerlaw.com 7 Attorneys for Defendant and Cross-Complainant 8 United States Real Estate Corporation 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA CRUZ 11 12 JASON NEEL, Case No. 22CV01758 13 Plaintiff, UNITED STATES REAL ESTATE 14 v. CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN 15 SUPERIOR LOAN SERVICING, ASSET OPPOSITION TO CODY MOLICA’S DEFAULT MANAGEMENT, INC., MOTION TO QUASH SERVICE OF 16 UNITED STATES REAL ESTATE SUMMONS CORPORATION; CNA EQUITIES 17 GROUP, LLC; RUSHMYFILE, Date: May 25, 2023 BUSINESS ENTITY FORM UNKNOWN, Time: 8:30 a.m. 18 and VIGIL REAL ESTATE, BUSINESS Dept: 5 ENTITY FORM UNKNOWN; and DOES Judge: Hon. Timothy Volkmann 19 1 through 100, inclusive, Action Filed: August 10, 2021 [Alameda Superior] 20 Defendants. Trial Date: Not Assigned 21 UNITED STATES REAL ESTATE 22 CORPORATION, 23 Cross-Complainant, v. 24 JASON NEEL, CNA EQUITY GROUP, 25 INC., a professional corporation, RUSHMYFILE, INC., a California 26 corporation, CODY MOLICA; and ROES 1 through 100, inclusive, 27 Defendants. 28 UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS 2019548.3 - NATC.JNEEL 1 I. INTRODUCTION 2 The Court should deny Cross-Defendant Cody Molica’s (“Molica”) Motion to Quash 3 Service of Summons of defendant and cross-complainant United States Real Estate Corporation’s 4 (“USREC”) cross-complaint (“Motion to Quash”), which is based solely on the alleged ground 5 that Molica no longer lives at the address where USREC effectuated substitute service, because 6 the record establishes that the address in question was, in fact, a “dwelling house” or “usual place 7 of abode” of Molica at the time USREC effectuated substitute service, which is all that is required 8 under the statute. See Code Civ. Proc. § 415.20(b). Although Molica argues that he moved from 9 the home where USREC effected service in September 2022, USREC’s process server was 10 advised by other residents of the home as late as October and December 2022 that Molica was not 11 home but “comes and goes” and, moreover, Molica’s timely filing of the Motion to Quash is itself 12 proof that USREC’s substitute service provided him with actual notice. 13 II. ARGUMENT 14 A. SUBSTITUTE SERVICE ON A DEFENDANT’S “DWELLING HOUSE” OR “USUAL PLACE OF ABODE” UNDER CODE OF CIVIL PROCEDURE 15 SECTION 415.20 IS A FACT SPECIFIC INQUIRY, LIBERALLY CONSTRUED 16 California law allows for substitute service of summons if a party is unable to effectuate 17 personal service: If a copy of the summons and complaint cannot with reasonable 18 diligence be personally delivered to the person to be served . . . a summons may be served leaving a copy of the summons and 19 complaint at the person’s dwelling house, usual place of abode . . . in the presence of a competent member of the household . . . at least 18 20 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 21 first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. 22 Code Civ. Proc. § 415.20(b). Two or three attempts to personally serve a defendant at a proper 23 place ordinarily qualifies as enough reasonable diligence to attempt substitute service. 24 Kremerman v. White (2021) 71 Cal.App.5th 358, 373; Bd. Of Trustees of the Leland Stanford 25 Junior University v. Ham (2013) 216 Cal.App.4th 330, 337, cert. denied, 134 S. Ct. 1035 (2014). 26 California service of process statues are “to be liberally construed to effectuate service and 27 uphold jurisdiction if actual notice has been received by the defendant.” Bein v. Brechtel-Jochim 28 2 UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS 2019548.3 - NATC.JNEEL 1 Group, Inc. (1992) 6 Cal.App.4th 1387, 1392. This liberal construction “extends to substitute 2 service as well as to personal service.” Id.; see also Stafford v. Mach (1998) 64 Cal.App.4th 1174, 3 1182 (traditional notions of fair play and substantial justice in due process are satisfied if the 4 substitute service used is reasonably calculated to give defendant actual notice and an opportunity 5 to be heard). A party may effectuate substitute service with a John or Jane Doe co-resident of a 6 defendant. See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 182-85 (proof of service upon 7 John Doe, co-resident at address publicly registered by defendant, instead of true name of person 8 given summons does not void proof of service on its face; service by leaving papers with apparent 9 co-resident at address publicly registered by defendant is method reasonably calculated to achieve 10 actual service). 11 The Judicial Council comment to Section 415.20(b) states that “The terms ‘dwelling 12 house’ and ‘usual place of abode’ take their meaning from the Federal Rules.” Judicial Council 13 Comment to Code Civ. Proc. § 415.20(b). Under the Federal Rules, “The determination of 14 whether a particular residence counts as a party’s place of usual abode is ‘highly fact-specific.’” 15 Craigslist, Inc. v. Hubert (N.D.Cal. 2011) 278 F.R.D. 510, 515 (citation removed). “[A] person 16 may ‘have more than one dwelling house or usual place of abode.’” Id. (citation removed). 17 Indeed, courts have interpreted the Federal Rules to hold that service at a defendant’s prior 18 residence is effective where the facts establish that the defendant recently lived there. Thus, in 19 Karllson v. Rabinowitz (4th Cir. 1963) 318 F.2d 666, the court held that service was sufficiently 20 effectuated by leaving a copy of a summons and complaint with a defendant’s wife at a Maryland 21 house where the defendant had lived prior to moving to Arizona where he had bought a house 22 intending never to return to Maryland. Likewise, in Blackhawk Heating & Plumbing Co. v. 23 Turner (D. Ariz. 1970) 50 F.R.D. 144, the court upheld service of process on a defendant when 24 the summons was left with the defendant’s daughter in an apartment where the defendant had 25 lived until shortly before service was made and the defendant had made no effort to leave a 26 forwarding address. 27 /// 28 /// 3 UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS 2019548.3 - NATC.JNEEL 1 B. SUBSTITUTE SERVICE ON MOLICA AT HIS STONY POINT ROAD ADDRESS IN SANTA ROSA WAS PROPER 2 Here, USREC caused Molica to be served with the Summons and Cross-Complaint 3 (“Summons”) by a registered California process server at 4360 Stony Point Road, Santa Rosa, 4 California 95407 (“Property”) through substituted service pursuant to Code of Civil Procedure 5 section 415.20(b). As reflected in the Proof of Service on file in this action, after seven visits to 6 the Property attempting to serve Molica personally, on January 12, 2023, the process server left 7 the Summons at the Property in the presence of an approximately 60-year-old female “Jane Doe” 8 and that same day mailed copies of the Summons by first-class mail, postage prepaid, addressed 9 to Molica at the Property. Walton Decl., ¶¶10-18. Multiple public records reflect that the 10 Property was and remains a registered address for Molica and, in fact, the Property is listed as 11 Molica’s address on his California issued Driver License. Delbridge Decl. ¶¶7-8, 11, Exs. 1-2, 5. 12 Although Molica now argues in his Motion to Quash that service of the Summons was 13 ineffective because he had moved from the Property in September 2022, USREC’s process server 14 was advised by the “Jane Doe” resident of the Property three times in October 2022 – on October 15 11, 12 and 17 – simply that Molica was “not in” at the time, and advised by a “John Doe” resident 16 of the Property as late as December 17, 2022, that John Doe was not certain when Molica might 17 be home because he “comes and goes.” Walton Decl. ¶¶5-7, 10.1 Thereafter, the process server 18 made six more attempts to serve the Summons on Molica personally before effecting substitute 19 service on January 12, 2023. 20 In his Motion to Quash and accompanying Declaration, Molica does not indicate where he 21 allegedly went after moving from the Property or where he currently resides, but he appears to 22 suggest through a Westfield, Massachusetts address of record on those pleadings that he now 23 resides out of state. Importantly, however, the address Molica lists on his Motion to Quash, 1029 24 North Road, #175, Westfield, MA 01085, is a private mailbox at “The Package Store,” a 25 commercial packing and shipping store. Delbridge Decl. ¶¶ 9, 10, Ex. 3 and 4. Although, in fact, 26 27 1 The service attempts in October 2022 were for a Deposition Subpoena for business records in 28 this case. Walton Decl. ¶¶3-7. 4 UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS 2019548.3 - NATC.JNEEL 1 located in Massachusetts, The Package Store provides “digital” mailbox services that allow 2 customers to receive their mail via digital scans without having ever to physically visit the store 3 or even live in the same area. Delbridge Decl. ¶ 10, Ex. 4. 4 Because contrary to Molica’s sole argument in support of his Motion to Quash, that he 5 moved from the Property in September 2022, two other residents confirmed that he continued to 6 “come and go” from the Property long after that, USREC’s substitute service on Molica at the 7 Property – the address showing for him in the public record to this day – was valid and effective. 8 Indeed, notwithstanding Molica’s arguments, as his timely filed Motion to Quash confirms, 9 USREC’s substitute service was effective to provide Molica with actual notice of these 10 proceedings and the opportunity to respond to USREC’s Cross-Complaint and be heard by this 11 Court. Given this record, and because California’s statutes governing service of process must be 12 “liberally construed to effectuate service and uphold jurisdiction if actual notice has been received 13 by the defendant,” (Bein, supra, 6 Cal.App.4th at 1392), Molica’s arguments should be rejected. 14 III. CONCLUSION 15 Because USREC properly effectuated substitute service on Molica on January 12, 2023, 16 the Court should deny Molica’s Motion to Quash and order Molica to file a responsive pleading 17 to USREC’s Cross-Complaint. 18 Dated: May 11, 2023 STEYER LOWENTHAL BOODROOKAS 19 ALVAREZ & SMITH LLP 20 By:______________________________ 21 Jeffrey H. Lowenthal Edward Egan Smith 22 Matthew W. Delbridge Attorneys for Defendant and Cross- 23 Complainant United States Real Estate Corporation 24 25 26 27 28 5 UNITED STATES REAL ESTATE CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CODY MOLICA’S MOTION TO QUASH SERVICE OF SUMMONS 2019548.3 - NATC.JNEEL