Preview
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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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SANTA CRUZ
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9 JASON NEEL Case No.: 22CV01758
10 Plaintiff,
11 vs. REPLY MEMORANDUM OF POINTS AND
AUTHORITIES, DECLARATIONS IN
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SUPERIOR LOAN SERVICING; ASSET SUPPORT OF CROSS-DEFENDANT CODY
MOLICA’S NOTICE OF MOTION AND
13 DEFAULT MANAGEMENT, INC., UNITED
MOTION TO QUASH SERVICE OF
STATES REAL ESTATE CORPORATION; SUMMONS [CODE CIV. PROC §
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CNA EQUITIES GROUP, LLC; AND 418.10(A)(1
15 RUSHMYFILE, BUSINESS ENTITY FORM
UNKNOWN, and VIGIL REAL ESTATE, DEPT. 5
16 BUSINESS ENTITY FORM UNKNOWN and ACTION FILED 08/16/2022
17 DOES 1-50, inclusive, Defendants. HON. TIMOTHY VOLKMANN
18 HEARING: 5/25/23
TIME: 9AM
19 UNITED STATES REAL ESTATE
CORPORATION, Cross-Complainant, UNLIMITED CIVIL ACTION
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21 v.
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JASON NEEL, CNA EQUITY GROUP, INC, a
23 professional corporation, RUSHMYFILE, INC,
a California corporation, CODY MOLICA, and
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ROES 1-50, inclusive,
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Cross-Defendants.
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 The motion to quash must be granted
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as Molica does not submit to jurisdiction of this court
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It is undisputed that in December of last year defendant filed a cross-complaint against
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Cody Molica and sought to have him substitute served upon his parents in Santa Rosa, California.
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6 The opposition alleges Molica’s subsequent motion to quash should be denied because “evidence”
7 supports the contention that the Santa Rosa address was Molica’s usual mailing address, residence
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or usual place of abode when his parents were substitute served on January 12, 2023. This cannot
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stand because evidence attached to this memorandum supports the declaration of Cody Molica that
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not only was the Santa Rosa address not his residence at the time of service, he was not domiciled
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12 in California at that time and thus the motion to quash must be granted as he does not submit to
13 the jurisdiction of the court.
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On a motion to quash service of summons, although defendant is the moving party and
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must present some admissible evidence to place the issue before the court, the burden of proof is
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on the plaintiff to establish, by a preponderance of the evidence, a basis for jurisdiction and valid
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18 service of process. (School Dist. Of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th
19 1126, Ward v. Superior Court of San Diego County (1970) 10 Cal.App.3d 1.)
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When a nonresident defendant challenges personal jurisdiction, the burden shifts to the
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plaintiff to demonstrate that all necessary jurisdictional criteria have been met, in the form of
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component evidence and authenticated documentary evidence. (Paneno v. Centers for Academic
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24 Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447).
25 In response to the defective substitute service made upon his parents’ residence in January
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of this year, Molica filed a timely motion to quash on the grounds that he did not reside at his
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parents’ house, nor the State of California, at the time service was completed. In opposition to this
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 motion, defendant and cross-complainant argues the “…record establishes that the address in
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question was, in fact, a ‘dwelling house’ or ‘usual place of abode’ of Molica at the time USREC
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effectuated substitute service, which is all that is required under the statute. See Code Civ. Proc.
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§415.20(b).” (Oppo memo p. 2.)
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6 In furtherance of this claim, USREC proffers the declaration of their process server that
7 he was told by other residents, ostensibly Molica’s parents, that in October and December of 2022,
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their son “comes and goes.” Finally, USREC asserts Molica’s filing of the motion to quash itself
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is “proof that USREC’s substitute service provided him with actual notice.” The last contention
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will be addressed first because it is completely without merit.
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12 Actual notice in time to defend is not relevant when determining a motion to quash.
13 USREC asserts “…because California’s statutes governing service of process must be
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‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been
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received by the defendant,” (citing Bein v. Brechtel-Jochim Group, Inc. (2012) 6 Cal.App.4th
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1387, 1392), Molica’s arguments should be rejected. (Oppo memo, p. 5.) USREC is mistaken.
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18 Bein, and the cases cited on p. 3 of the opposition, are not jurisdictionally analogous authorities.
19 Those matters dealt with the “actual notice” requirement imposed by the legislature when parties
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utilize the remedial statute, 473.5 to vacate default and default judgments on the grounds that
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they were procured in the absence of actual notice in time to defend. Those cases do not control
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motions to quash for lack of personal jurisdiction on the grounds that service was not completed
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24 in conformity with the applicable statutes.
25 To the contrary, when jurisdictional issues are placed before the court upon constructive
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service cases, such as when substitute service is alleged, the standard is not liberal. Strict
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compliance is required. A court has no authority to render judgment on the basis of substituted
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 or constructive service of the summons when statutory requirements have not been strictly
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complied with. (Summers v. McClanahan (2006) 140 Cal.App.4th, 403, 412; Zirbes v. Stratton
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(1986) 187 Cal.App.3d 1407, 1416; Eagle Electric Mfg. Co. v. Keener (1966) 247 Cal.App.2d
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246, 251.) In Bein, taken for the assertion by USREC that actual notice sustains defective
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6 service; the defendants were served upon their “gate guard” (Bien, supra, p.1392). Who refused
7 the process server entry upon private property. In upholding the propriety of such service as a
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matter of first impression, the court properly stated: “Litigants have the right to choose their
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abodes; they do not have the right to control who may sue or serve them by denying them
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physical access”. (Bein, p.1393.)
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12 A more analogous authority is Zirbes, supra, where the court of appeal held: “Substitute
13 service by abode service is a secondary method of service on natural persons (citations). In order
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to obtain in personam jurisdiction through any form of constructive service there must be strict
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compliance with the requisite statutory procedures” (citations) (Id., p. 1416). In affirming a trial
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court’s order granting a motion to vacate default judgment on the ground that service was void
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18 under section 473(d), the Second District refused a plaintiff’s assertions that service upon the
19 defendant’s parents was within the line of reasoning that no parent would fail to deliver
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summons to their child (p. 1415). While the plaintiff in that action cited to favorable, but not in
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privity, federal decisions based on the Judicial Council comments in the same manner in which
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USREC does (oppo memo p. 3), the most analogous California authority cited to a sister state
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24 decision from Oregon in denying that substitute service upon a parent is valid.
25 “The defendant claimed his parents’ home was not his abode for purposes of service
because he was living in another state attending college (citations). The court agreed. It
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found the plaintiff’s contentions defendant used his parents’ address as his own on his
27 Oregon driver’s license and on his automobile registration among other evidence as
unpersuasive because it equated “usual place of abode” with domicile (citations). It stated
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 ‘the question of what constitutes defendant’s ‘usual place of abode’ is not one of abstract
definition, but must be answered with the notice requirements of due process clearly in
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mind (citations).” (Zirbes, supra, p. 1417.)
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4 Similarly, USREC’s relies upon the same erroneous logic. Notwithstanding the irrelevant
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element of “actual notice,” valid substitute service cannot be made upon the relationship imputed
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between parent and child. USREC has failed to produce competent and admissible evidence that
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would make it more likely than not that Cody Molica was a resident of the Santa Rosa address
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9 when service was completed there. Indeed, it cannot. Attached to this memorandum are reply
10 declarations, responding to the allegations of the attorney and process server representing
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USREC. Cross-defendant was a student of the University of Massachusetts-Amherst at the time
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the attempts at service were made upon him in California. While it is true Molica maintains a
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California driver’s license, he was not domiciled there and it was not his “usual place of abode”
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15 during the relevant time in question. USREC even produces evidence of this fact in their
16 opposition declaration, citing Molica’s Massachusetts virtual post office box as the address used
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on his pleadings (Delbridge decl. Exh. 3 & 4).
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Actual notice does not salvage defective service
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Despite allegations by USREC to the contrary (oppo, p. 5), Molica’s imputed ‘notice’ of
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21 the action against him in time to defend does not render the defective substitute service
22 completed by USREC valid. Mere knowledge of an action is not a substitute for service, nor
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does it raise any estoppel to contest the validity of service. (Honda Motor Co. v. Superior Court
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(1992) 10 Cal. App. 4th 1043.)
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USREC attempts to introduce evidence over Molica’s expressed objections herein, on
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27 the grounds of it being without foundation, double hearsay and incompetent. (Brown v. Garcia
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 (2017) 17 Cal. App. 5th 1198.) Exhibits 1 & 2 attached to counsel’s declaration are purportedly
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“people finder” and “Bank Account Header Record(s)” showing Molica’s current evidence is
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where service was conducted in Santa Rosa earlier this year. The source of this information is
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alleged to be from the legal research database “Westlaw.” This is not doubted. However, a large
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6 paragraph cautioning their veracity appears on each page. The information on exhibit 1 is
7 credited as being current as of the end of March, 2023. The source is listed as being from
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“TRANS UNION.” Exhibit “2” is purportedly current as of March, 2023 and although is
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attested as having something to do with a “Bank Account” associated with Molica. The name of
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that bank nor an account number are listed. Moreover, this “evidence” does not establish that
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12 Molica was living in Santa Rosa, nor at the address cited when service was completed in January
13 of 2023. These two exhibits assume facts not in evidence and do not possess an adequate
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foundation for which they can be accepted as business records. They are also likely double
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hearsay as Westlaw did not produce the records, they simply are a broker sharing records they
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obtained from an unknown source with the bank record and an identifiable other source, in the
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18 people search record, Trans Union.
19 While it is true evidence by declaration may be taken into account in determining a
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contested motion to quash, such questionable sources are hardly substantial. (Enterprises, Inc. v.
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Superior Court (1988) 205 Cal. App. 3d 1427
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“Thomson Reuters Legal is not a consumer reporting agency and non if its services or the
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data contained therein constitute a ‘consumer report’ as such term is defined in the Federal
24 Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq. The data provided to you may
not be used as a factor in consumer debt collection decisioning, establishing a consumer’s
25 eligibility for credit, insurance, employment, government benefits, or housing, or for any
other purpose authorized under the FCRA. By accessing one of our services, you agree
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not to use the service or data for any purpose authorized under the FCRA or in relation to
27 taking an adverse action relating to a consumer application.” (Delbridge decl. exhibits “1”
& “2”.)
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
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Perhaps Westlaw should consort with another credit reporting agency. The court is
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3 requested to take judicial notice of the fact that there are three credit reporting agencies: Trans
4 Union, (cited as double hearsay from Westlaw ‘People Finder’ Ex. “1”) Equifax, and Experion,
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which is cited in Molica’s declaration in reply as Exhibit “A”. On May 14, 2023, Molica
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obtained a copy of his own credit report from Experion, which was his right. This much more
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accurate reporter of addresses furnished two additional and different recent residences for Mr.
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9 Molica, an apartment and a house (Reply decl. Molica Ex. “A”.) The document has been redated
10 for privacy reasons.
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The declaration of Eric Walton is rebutted by the declarations of Mr. & Mrs. Molica
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Attached to the Reply declaration of Molica are declarations of his parents providing
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much needed context for the scant observations attested to by the process server cited in support
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15 of USREC’s opposition memorandum.
16 Mr. Walton alleges:
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“On December 17, 2022, I made my first attempt to serve Molica with the Summons at the
18 Property. I approached the front door, where Jane Doe was entering the house… I then
saw a white male, aged approximately 70 years old (“John Doe”), walking on the Property.
19 John Doe told me that Molica was not at the Property at that time. I asked when Molica
might be home, and John Doe replied that Molica “comes and goes” and that he was not
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sure when would be a good time to come back.” (Decl. Eric Walton, ¶10, p. 2-3.)
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According to Richard Molica, the process server offered a substantially truncated version
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of their conversation.
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24 “Late last year, my wife told me there was a man coming around with papers asking for
my son and wanted to know where he’s been. I told her not to tell him anything or that
25 she doesn’t know.
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Eventually, this young man with tattoos approached me while I was doing errands on my
27 property and began asking me questions about where my son Cody was. I told him I do
not know. He got real close to me and said my wife had told him that Cody was here. I
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 said he is not here. He said when will Cody be here, I said I don’t know. He said, I know
Cody’s been here. I said, I don’t know nothing about it.
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3 The man pointed at my house and said something like, she knows and slammed the door
in my face… I was here before and she said he’s been here. I told him, he’s gone to
4 Massachusetts for school. The man was not satisfied by this and began arguing with me
about what my wife had told him before in October when he served her with a subpoena.
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I said that was before and now he’s gone. He comes and goes and I want you to leave
6 and I don’t want to talk anymore about it. That’s it.” (Declaration of Richard Molica in
support of Reply memo ¶3-5.)
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Cross-defendant at the time of service was a student at the University of Massachusetts-
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Amherst and a resident of the State of Massachusetts. (Molica Reply decl.)
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Conclusion
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For well substantiated policy and constitutional reasons, a party need not assist their
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opponent in the perfection of the actions contemplated against them. As the opposition makes
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18 clear, USREC knows Molica maintains an out of state mailbox. It makes no sense that Molica
19 would operate a mailbox on the other side of the country for no reason. USREC fails to produce
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competent and admissible evidence establishing that Molica was domiciled, let alone resided at
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the Santa Rosa address when substitute service upon his parents was completed. Having
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knowingly failed to carry their burden, USREC attempts to save face through alleging the very
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24 act of challenging defective service should inoculate the flaws complained thereof. After all,
25 Molica did discover this action in time to file a motion to quash. To sustain such a notion would
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cause the exception to swallow the rule. Virtually any form of service would do and defendants
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would be hard pressed to prove otherwise. The shoe however is on the wrong foot. Plaintiff’s
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 must perfect service before obtaining relief from the court. The motion to quash service of
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summons should be granted.
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Dated: May 18, 2023
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/S/ CODY MOLICA
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6 Cody Molica, Cross-Defendant in pro per
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REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS
1 Cody Molica
1029 North Road, #175
2
Westfield, MA 01085
3 (619) 693-7896
cmolica11@gmail.com
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Cross-Defendant in Pro Per
5
6
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SANTA CRUZ
8
9 JASON NEEL Case No.: 22CV01758
10 Plaintiff,
11 vs. REPLY DECLARATION OF CODY
MOLICA
12
SUPERIOR LOAN SERVICING; ASSET
DEPT. 5
13 DEFAULT MANAGEMENT, INC., UNITED
ACTION FILED 08/16/2022
STATES REAL ESTATE CORPORATION;
14 HON. TIMOTHY VOLKMANN
CNA EQUITIES GROUP, LLC; AND
15 RUSHMYFILE, BUSINESS ENTITY FORM HEARING: 5/25/23
UNKNOWN, and VIGIL REAL ESTATE, TIME: 9AM
16 BUSINESS ENTITY FORM UNKNOWN and
17 DOES 1-50, inclusive, Defendants. UNLIMITED CIVIL ACTION
18
19 UNITED STATES REAL ESTATE
CORPORATION, Cross-Complainant,
20
21 v.
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JASON NEEL, CNA EQUITY GROUP, INC, a
23 professional corporation, RUSHMYFILE, INC,
a California corporation, CODY MOLICA, and
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ROES 1-50, inclusive,
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Cross-Defendants.
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28 1
DECLARATION OF CODY MOLICA IN SUPPORT OF REPLY MEMORANDUM
1 I, CODY MOLICA, DECLARES AS FOLLOWS:
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1. From September of last year through January of 2023 I was not a resident of the state
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of California as my domicile was in the State of Massachusetts while I was a student
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at the University at Amherst.
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6 2. The Exhibit attached to this declaration is a true and correct copy of my credit report
7 which I pulled from the credit reporting agency upon reading the opposition
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memorandum in this case. I have redacted it for privacy reasons.
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I declare under penalty of perjury under the laws of the State of California that the
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12 foregoing is true and correct.
13 Dated: May 18, 2023
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/S/ CODY MOLICA
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DECLARATION OF CODY MOLICA IN SUPPORT OF REPLY MEMORANDUM
I Cody Molica
1029 North Road, #175
2
Westfield, MA 01085
(6re) 693-78e6
qmgliga11@gma-il,com
Cross-Defendant in Pro Per
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CRUZ
JASON NEEL Case No.: 22CVOL758
Plaintiff,
VS.
DECLARATION OF RICHARD MOLICA IN
SUPPORT OF REPLY MEMORANDUM IN
SUPERIOR LOAN SERVICING; ASSET SUPPORT OF CROSS-DEFENDANT CODY
MOLICA'S NOTICE OF MOTION AND
DEFAULT MANAGEMENT, [NC., LINITED
MOTION TO QUASH SERVICE OF
STATES REAL ESTATE CORPORATION;
suMMoNS ICODE CrV. PROC $
CNA EQUITIES GROUP, LLC; AND 418.1O(AX1
RUSHMYFILE, BUSINESS ENTITY FORM
UNKNOWN, and VIGIL REAL ESTATE, DEPT.5
BUSINESS ENTITY FORM IINKNOWN and ACTION FILED O8I 16/2022
DOES 1-50, inclusive, Defendants. HON. TIMOTHY VOLKMANN
HEARING 5125123
TIME: 9AM
UNITED STATES REAL ESTATE
CORPORATION, Cross-Complainant, UNLIMITED CIVIL ACTION
v.
JASON NEEL, CNA EQUITY GROUP, INC, A
professional corporation, RUSHMYFILE, INC,
a Califomia corporation, CODY MOLICA, and
ROES 1-50, inclusive,
Cross-Defendants.
DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM
1
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I, Richard Molica, declares as follows:
J
1. The following is my own testimony, which I could and would testifl, to if called upon
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to do so. It is of my own personal knowledge, except those matters alleged on
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6 information and belief, and of those matters I believe them to be true.
7 2. I am the owner of the property at 4360 Stony Point Road, Santa Rosa, CA.
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J. Late last year, my wife told me there was a man coming around with papers asking
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for my son and wanted to know where he's been. I told her not to tell him anything
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or that she doesn't know.
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t2 4. Eventually, this young man with tattoos approached me while I was doing errands on
l3 my property and began asking me questions about where my son Cody was. I told
t4
him I do not know. He got real close to me and said my wife had told him that Cody
l5
was here. I said he is not here. He said when will Cody be here, I said I don't know.
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He said, I know Cody's been here. I said, I don't know nothing about it.
t7
18 5. The man pointed at my house and said something like, she knows and slammed the
19 door in my face... I was here before and she said he's been here. I told him, he's
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gone to Massachusetts for school. The man was not satisfied by this and began
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arguing with me about what my wife had told him before in October when he served
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her with a subpoena. I said that was before and now he's gone. He comes and goes
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24 and I want you to leave and I don't want to talk anymore about it. That's it.
25 6. The man left. Some time later, a few weeks or so, my wife told me someone had left
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a bunch ofpapers on the front door for Cody.
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DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM
7. My son told me that there's some people he doesn't know that are trying to sue him
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for something a lawyer did when he worked for him years ago. He asked me to write
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down what happened with the process server and my wife would type it up and have
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me sign it.
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6 8. She has typed up what I have written down as my best recollection of what happened.
7 I am 79 years old.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Dated: May 18, 2023
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13 Richard Molica
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DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM
I Cody Molica
1029 North Road, #175
2
Westfield, MA 01085
J (6te) 693-7896
cmolical 1@gma-il,com
Cross-Defendant in Pro Per
SUPERIOR COURT OF CALIFORNIA
COLINTY OF SANTA CRUZ
JASON NEEL Case No.: 22CVOL758
Plaintiff,
1l vs.
DECLARATION OF BEVERLY MOLICA
SUPPORT OF REPLY MEMORANDUM IN
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SUPERIOR LOAN SERVICING; ASSET SUPPORT OF CROSS-DEFENDANT CODY
MOLICA'S NOTICE OF MOTION AND
13 DEFAULT MANAGEMENT, INC., LINITED
MOTION TO QUASH SERVICE OF
STATES REAL ESTATE CORPORATION;
t4 suMMoNS ICODE CrV. PROC $
CNA EQUITIES GROUP, LLC; AND 418.10(AX1
l5 RUSHMYFILE, BUSINESS ENTITY FORM
UNKNOWN, and VIGIL REAL ESTATE, DEPT.5
t6 BUSINESS ENTITY FORM IINKNOWN and ACTION FILED O8I 1612022
17 DOES 1-50, inclusive, Defendants. HON. TIMOTHY VOLKMANN
18 HEARING:5125123
TIME: 9AM
19 I.INITED STATES REAL ESTATE
CORPORATION, Cross-Complainant, UNLIMITED CIVIL ACTION
20
V.
JASON NEEL, CNA EQUITY GROUP, INC, A
professional corporation, RUSHMYFILE, INC,
a Califomia corporation, CODY MOLICA, and
ROES 1-50, inclusive,
Cross-Defendants.
DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM
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I, Beverly Molica, declares as follows:
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1. The following is my own testimony, which I could and would testifu to if called upon
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to do so. It is of my owrt personal knowledge, except those matters alleged on
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6 information and belief, and of those matters I believe them to be true.
7 2. I live with my husband Richard Molica at 4360 Stony Point Road, Santa Rosa, CA.
8 a
Late last year, a man was coming around with papers asking for my son and wanted
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to know where he's been. I asked my husband what to say and he said not to talk to
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him. He came around a bunch of times between October and December of last year.
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12 He may have come around in January also I do not remember. I don't remember
l3 exactly what I said to him because I was scared. I told him my son wasn't here and
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shut the door. Other times I would recognize him and not answer the door.
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4. He would bang on the door and yell for Cody. Sometimes he would leave big pac
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of paper on the door and not say what they were.
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l8 5. My son moved to Massachusetts last year to attend school and then moved back this
19 yeat.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Dated: May 18,2023
ZJ
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25 Beverly Molica
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DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM
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1 Cody Molica 1029 North Road, #175 2 Westfield, MA 01085 3 (619) 693-7896 cmolica11@gmail.com 4 Cross-Defendant in Pro Per 5 6 SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF SANTA CRUZ 8 9 JASON NEEL Case No.: 22CV01758 10 Plaintiff, 11 vs. REPLY MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATIONS IN 12 SUPERIOR LOAN SERVICING; ASSET SUPPORT OF CROSS-DEFENDANT CODY MOLICA’S NOTICE OF MOTION AND 13 DEFAULT MANAGEMENT, INC., UNITED MOTION TO QUASH SERVICE OF STATES REAL ESTATE CORPORATION; SUMMONS [CODE CIV. PROC § 14 CNA EQUITIES GROUP, LLC; AND 418.10(A)(1 15 RUSHMYFILE, BUSINESS ENTITY FORM UNKNOWN, and VIGIL REAL ESTATE, DEPT. 5 16 BUSINESS ENTITY FORM UNKNOWN and ACTION FILED 08/16/2022 17 DOES 1-50, inclusive, Defendants. HON. TIMOTHY VOLKMANN 18 HEARING: 5/25/23 TIME: 9AM 19 UNITED STATES REAL ESTATE CORPORATION, Cross-Complainant, UNLIMITED CIVIL ACTION 20 21 v. 22 JASON NEEL, CNA EQUITY GROUP, INC, a 23 professional corporation, RUSHMYFILE, INC, a California corporation, CODY MOLICA, and 24 ROES 1-50, inclusive, 25 Cross-Defendants. 26 27 28 1 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 The motion to quash must be granted 2 as Molica does not submit to jurisdiction of this court 3 It is undisputed that in December of last year defendant filed a cross-complaint against 4 Cody Molica and sought to have him substitute served upon his parents in Santa Rosa, California. 5 6 The opposition alleges Molica’s subsequent motion to quash should be denied because “evidence” 7 supports the contention that the Santa Rosa address was Molica’s usual mailing address, residence 8 or usual place of abode when his parents were substitute served on January 12, 2023. This cannot 9 stand because evidence attached to this memorandum supports the declaration of Cody Molica that 10 not only was the Santa Rosa address not his residence at the time of service, he was not domiciled 11 12 in California at that time and thus the motion to quash must be granted as he does not submit to 13 the jurisdiction of the court. 14 On a motion to quash service of summons, although defendant is the moving party and 15 must present some admissible evidence to place the issue before the court, the burden of proof is 16 on the plaintiff to establish, by a preponderance of the evidence, a basis for jurisdiction and valid 17 18 service of process. (School Dist. Of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 19 1126, Ward v. Superior Court of San Diego County (1970) 10 Cal.App.3d 1.) 20 When a nonresident defendant challenges personal jurisdiction, the burden shifts to the 21 plaintiff to demonstrate that all necessary jurisdictional criteria have been met, in the form of 22 component evidence and authenticated documentary evidence. (Paneno v. Centers for Academic 23 24 Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447). 25 In response to the defective substitute service made upon his parents’ residence in January 26 of this year, Molica filed a timely motion to quash on the grounds that he did not reside at his 27 parents’ house, nor the State of California, at the time service was completed. In opposition to this 28 2 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 motion, defendant and cross-complainant argues the “…record establishes that the address in 2 question was, in fact, a ‘dwelling house’ or ‘usual place of abode’ of Molica at the time USREC 3 effectuated substitute service, which is all that is required under the statute. See Code Civ. Proc. 4 §415.20(b).” (Oppo memo p. 2.) 5 6 In furtherance of this claim, USREC proffers the declaration of their process server that 7 he was told by other residents, ostensibly Molica’s parents, that in October and December of 2022, 8 their son “comes and goes.” Finally, USREC asserts Molica’s filing of the motion to quash itself 9 is “proof that USREC’s substitute service provided him with actual notice.” The last contention 10 will be addressed first because it is completely without merit. 11 12 Actual notice in time to defend is not relevant when determining a motion to quash. 13 USREC asserts “…because California’s statutes governing service of process must be 14 ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been 15 received by the defendant,” (citing Bein v. Brechtel-Jochim Group, Inc. (2012) 6 Cal.App.4th 16 1387, 1392), Molica’s arguments should be rejected. (Oppo memo, p. 5.) USREC is mistaken. 17 18 Bein, and the cases cited on p. 3 of the opposition, are not jurisdictionally analogous authorities. 19 Those matters dealt with the “actual notice” requirement imposed by the legislature when parties 20 utilize the remedial statute, 473.5 to vacate default and default judgments on the grounds that 21 they were procured in the absence of actual notice in time to defend. Those cases do not control 22 motions to quash for lack of personal jurisdiction on the grounds that service was not completed 23 24 in conformity with the applicable statutes. 25 To the contrary, when jurisdictional issues are placed before the court upon constructive 26 service cases, such as when substitute service is alleged, the standard is not liberal. Strict 27 compliance is required. A court has no authority to render judgment on the basis of substituted 28 3 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 or constructive service of the summons when statutory requirements have not been strictly 2 complied with. (Summers v. McClanahan (2006) 140 Cal.App.4th, 403, 412; Zirbes v. Stratton 3 (1986) 187 Cal.App.3d 1407, 1416; Eagle Electric Mfg. Co. v. Keener (1966) 247 Cal.App.2d 4 246, 251.) In Bein, taken for the assertion by USREC that actual notice sustains defective 5 6 service; the defendants were served upon their “gate guard” (Bien, supra, p.1392). Who refused 7 the process server entry upon private property. In upholding the propriety of such service as a 8 matter of first impression, the court properly stated: “Litigants have the right to choose their 9 abodes; they do not have the right to control who may sue or serve them by denying them 10 physical access”. (Bein, p.1393.) 11 12 A more analogous authority is Zirbes, supra, where the court of appeal held: “Substitute 13 service by abode service is a secondary method of service on natural persons (citations). In order 14 to obtain in personam jurisdiction through any form of constructive service there must be strict 15 compliance with the requisite statutory procedures” (citations) (Id., p. 1416). In affirming a trial 16 court’s order granting a motion to vacate default judgment on the ground that service was void 17 18 under section 473(d), the Second District refused a plaintiff’s assertions that service upon the 19 defendant’s parents was within the line of reasoning that no parent would fail to deliver 20 summons to their child (p. 1415). While the plaintiff in that action cited to favorable, but not in 21 privity, federal decisions based on the Judicial Council comments in the same manner in which 22 USREC does (oppo memo p. 3), the most analogous California authority cited to a sister state 23 24 decision from Oregon in denying that substitute service upon a parent is valid. 25 “The defendant claimed his parents’ home was not his abode for purposes of service because he was living in another state attending college (citations). The court agreed. It 26 found the plaintiff’s contentions defendant used his parents’ address as his own on his 27 Oregon driver’s license and on his automobile registration among other evidence as unpersuasive because it equated “usual place of abode” with domicile (citations). It stated 28 4 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 ‘the question of what constitutes defendant’s ‘usual place of abode’ is not one of abstract definition, but must be answered with the notice requirements of due process clearly in 2 mind (citations).” (Zirbes, supra, p. 1417.) 3 4 Similarly, USREC’s relies upon the same erroneous logic. Notwithstanding the irrelevant 5 element of “actual notice,” valid substitute service cannot be made upon the relationship imputed 6 between parent and child. USREC has failed to produce competent and admissible evidence that 7 would make it more likely than not that Cody Molica was a resident of the Santa Rosa address 8 9 when service was completed there. Indeed, it cannot. Attached to this memorandum are reply 10 declarations, responding to the allegations of the attorney and process server representing 11 USREC. Cross-defendant was a student of the University of Massachusetts-Amherst at the time 12 the attempts at service were made upon him in California. While it is true Molica maintains a 13 California driver’s license, he was not domiciled there and it was not his “usual place of abode” 14 15 during the relevant time in question. USREC even produces evidence of this fact in their 16 opposition declaration, citing Molica’s Massachusetts virtual post office box as the address used 17 on his pleadings (Delbridge decl. Exh. 3 & 4). 18 Actual notice does not salvage defective service 19 Despite allegations by USREC to the contrary (oppo, p. 5), Molica’s imputed ‘notice’ of 20 21 the action against him in time to defend does not render the defective substitute service 22 completed by USREC valid. Mere knowledge of an action is not a substitute for service, nor 23 does it raise any estoppel to contest the validity of service. (Honda Motor Co. v. Superior Court 24 (1992) 10 Cal. App. 4th 1043.) 25 USREC attempts to introduce evidence over Molica’s expressed objections herein, on 26 27 the grounds of it being without foundation, double hearsay and incompetent. (Brown v. Garcia 28 5 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 (2017) 17 Cal. App. 5th 1198.) Exhibits 1 & 2 attached to counsel’s declaration are purportedly 2 “people finder” and “Bank Account Header Record(s)” showing Molica’s current evidence is 3 where service was conducted in Santa Rosa earlier this year. The source of this information is 4 alleged to be from the legal research database “Westlaw.” This is not doubted. However, a large 5 6 paragraph cautioning their veracity appears on each page. The information on exhibit 1 is 7 credited as being current as of the end of March, 2023. The source is listed as being from 8 “TRANS UNION.” Exhibit “2” is purportedly current as of March, 2023 and although is 9 attested as having something to do with a “Bank Account” associated with Molica. The name of 10 that bank nor an account number are listed. Moreover, this “evidence” does not establish that 11 12 Molica was living in Santa Rosa, nor at the address cited when service was completed in January 13 of 2023. These two exhibits assume facts not in evidence and do not possess an adequate 14 foundation for which they can be accepted as business records. They are also likely double 15 hearsay as Westlaw did not produce the records, they simply are a broker sharing records they 16 obtained from an unknown source with the bank record and an identifiable other source, in the 17 18 people search record, Trans Union. 19 While it is true evidence by declaration may be taken into account in determining a 20 contested motion to quash, such questionable sources are hardly substantial. (Enterprises, Inc. v. 21 Superior Court (1988) 205 Cal. App. 3d 1427 22 “Thomson Reuters Legal is not a consumer reporting agency and non if its services or the 23 data contained therein constitute a ‘consumer report’ as such term is defined in the Federal 24 Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq. The data provided to you may not be used as a factor in consumer debt collection decisioning, establishing a consumer’s 25 eligibility for credit, insurance, employment, government benefits, or housing, or for any other purpose authorized under the FCRA. By accessing one of our services, you agree 26 not to use the service or data for any purpose authorized under the FCRA or in relation to 27 taking an adverse action relating to a consumer application.” (Delbridge decl. exhibits “1” & “2”.) 28 6 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 Perhaps Westlaw should consort with another credit reporting agency. The court is 2 3 requested to take judicial notice of the fact that there are three credit reporting agencies: Trans 4 Union, (cited as double hearsay from Westlaw ‘People Finder’ Ex. “1”) Equifax, and Experion, 5 which is cited in Molica’s declaration in reply as Exhibit “A”. On May 14, 2023, Molica 6 obtained a copy of his own credit report from Experion, which was his right. This much more 7 accurate reporter of addresses furnished two additional and different recent residences for Mr. 8 9 Molica, an apartment and a house (Reply decl. Molica Ex. “A”.) The document has been redated 10 for privacy reasons. 11 The declaration of Eric Walton is rebutted by the declarations of Mr. & Mrs. Molica 12 Attached to the Reply declaration of Molica are declarations of his parents providing 13 much needed context for the scant observations attested to by the process server cited in support 14 15 of USREC’s opposition memorandum. 16 Mr. Walton alleges: 17 “On December 17, 2022, I made my first attempt to serve Molica with the Summons at the 18 Property. I approached the front door, where Jane Doe was entering the house… I then saw a white male, aged approximately 70 years old (“John Doe”), walking on the Property. 19 John Doe told me that Molica was not at the Property at that time. I asked when Molica might be home, and John Doe replied that Molica “comes and goes” and that he was not 20 sure when would be a good time to come back.” (Decl. Eric Walton, ¶10, p. 2-3.) 21 According to Richard Molica, the process server offered a substantially truncated version 22 of their conversation. 23 24 “Late last year, my wife told me there was a man coming around with papers asking for my son and wanted to know where he’s been. I told her not to tell him anything or that 25 she doesn’t know. 26 Eventually, this young man with tattoos approached me while I was doing errands on my 27 property and began asking me questions about where my son Cody was. I told him I do not know. He got real close to me and said my wife had told him that Cody was here. I 28 7 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 said he is not here. He said when will Cody be here, I said I don’t know. He said, I know Cody’s been here. I said, I don’t know nothing about it. 2 3 The man pointed at my house and said something like, she knows and slammed the door in my face… I was here before and she said he’s been here. I told him, he’s gone to 4 Massachusetts for school. The man was not satisfied by this and began arguing with me about what my wife had told him before in October when he served her with a subpoena. 5 I said that was before and now he’s gone. He comes and goes and I want you to leave 6 and I don’t want to talk anymore about it. That’s it.” (Declaration of Richard Molica in support of Reply memo ¶3-5.) 7 8 Cross-defendant at the time of service was a student at the University of Massachusetts- 9 Amherst and a resident of the State of Massachusetts. (Molica Reply decl.) 10 11 12 13 14 Conclusion 15 For well substantiated policy and constitutional reasons, a party need not assist their 16 opponent in the perfection of the actions contemplated against them. As the opposition makes 17 18 clear, USREC knows Molica maintains an out of state mailbox. It makes no sense that Molica 19 would operate a mailbox on the other side of the country for no reason. USREC fails to produce 20 competent and admissible evidence establishing that Molica was domiciled, let alone resided at 21 the Santa Rosa address when substitute service upon his parents was completed. Having 22 knowingly failed to carry their burden, USREC attempts to save face through alleging the very 23 24 act of challenging defective service should inoculate the flaws complained thereof. After all, 25 Molica did discover this action in time to file a motion to quash. To sustain such a notion would 26 cause the exception to swallow the rule. Virtually any form of service would do and defendants 27 would be hard pressed to prove otherwise. The shoe however is on the wrong foot. Plaintiff’s 28 8 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 must perfect service before obtaining relief from the court. The motion to quash service of 2 summons should be granted. 3 Dated: May 18, 2023 4 /S/ CODY MOLICA 5 6 Cody Molica, Cross-Defendant in pro per 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 REPLY IN SUPPORT OF MOTION TO QUASH SUMMONS 1 Cody Molica 1029 North Road, #175 2 Westfield, MA 01085 3 (619) 693-7896 cmolica11@gmail.com 4 Cross-Defendant in Pro Per 5 6 SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF SANTA CRUZ 8 9 JASON NEEL Case No.: 22CV01758 10 Plaintiff, 11 vs. REPLY DECLARATION OF CODY MOLICA 12 SUPERIOR LOAN SERVICING; ASSET DEPT. 5 13 DEFAULT MANAGEMENT, INC., UNITED ACTION FILED 08/16/2022 STATES REAL ESTATE CORPORATION; 14 HON. TIMOTHY VOLKMANN CNA EQUITIES GROUP, LLC; AND 15 RUSHMYFILE, BUSINESS ENTITY FORM HEARING: 5/25/23 UNKNOWN, and VIGIL REAL ESTATE, TIME: 9AM 16 BUSINESS ENTITY FORM UNKNOWN and 17 DOES 1-50, inclusive, Defendants. UNLIMITED CIVIL ACTION 18 19 UNITED STATES REAL ESTATE CORPORATION, Cross-Complainant, 20 21 v. 22 JASON NEEL, CNA EQUITY GROUP, INC, a 23 professional corporation, RUSHMYFILE, INC, a California corporation, CODY MOLICA, and 24 ROES 1-50, inclusive, 25 Cross-Defendants. 26 27 28 1 DECLARATION OF CODY MOLICA IN SUPPORT OF REPLY MEMORANDUM 1 I, CODY MOLICA, DECLARES AS FOLLOWS: 2 1. From September of last year through January of 2023 I was not a resident of the state 3 of California as my domicile was in the State of Massachusetts while I was a student 4 at the University at Amherst. 5 6 2. The Exhibit attached to this declaration is a true and correct copy of my credit report 7 which I pulled from the credit reporting agency upon reading the opposition 8 memorandum in this case. I have redacted it for privacy reasons. 9 10 I declare under penalty of perjury under the laws of the State of California that the 11 12 foregoing is true and correct. 13 Dated: May 18, 2023 14 /S/ CODY MOLICA 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF CODY MOLICA IN SUPPORT OF REPLY MEMORANDUM I Cody Molica 1029 North Road, #175 2 Westfield, MA 01085 (6re) 693-78e6 qmgliga11@gma-il,com Cross-Defendant in Pro Per SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ JASON NEEL Case No.: 22CVOL758 Plaintiff, VS. DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM IN SUPERIOR LOAN SERVICING; ASSET SUPPORT OF CROSS-DEFENDANT CODY MOLICA'S NOTICE OF MOTION AND DEFAULT MANAGEMENT, [NC., LINITED MOTION TO QUASH SERVICE OF STATES REAL ESTATE CORPORATION; suMMoNS ICODE CrV. PROC $ CNA EQUITIES GROUP, LLC; AND 418.1O(AX1 RUSHMYFILE, BUSINESS ENTITY FORM UNKNOWN, and VIGIL REAL ESTATE, DEPT.5 BUSINESS ENTITY FORM IINKNOWN and ACTION FILED O8I 16/2022 DOES 1-50, inclusive, Defendants. HON. TIMOTHY VOLKMANN HEARING 5125123 TIME: 9AM UNITED STATES REAL ESTATE CORPORATION, Cross-Complainant, UNLIMITED CIVIL ACTION v. JASON NEEL, CNA EQUITY GROUP, INC, A professional corporation, RUSHMYFILE, INC, a Califomia corporation, CODY MOLICA, and ROES 1-50, inclusive, Cross-Defendants. DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM 1 2 I, Richard Molica, declares as follows: J 1. The following is my own testimony, which I could and would testifl, to if called upon 4 to do so. It is of my own personal knowledge, except those matters alleged on 5 6 information and belief, and of those matters I believe them to be true. 7 2. I am the owner of the property at 4360 Stony Point Road, Santa Rosa, CA. 8 J. Late last year, my wife told me there was a man coming around with papers asking 9 for my son and wanted to know where he's been. I told her not to tell him anything 10 or that she doesn't know. ll t2 4. Eventually, this young man with tattoos approached me while I was doing errands on l3 my property and began asking me questions about where my son Cody was. I told t4 him I do not know. He got real close to me and said my wife had told him that Cody l5 was here. I said he is not here. He said when will Cody be here, I said I don't know. t6 He said, I know Cody's been here. I said, I don't know nothing about it. t7 18 5. The man pointed at my house and said something like, she knows and slammed the 19 door in my face... I was here before and she said he's been here. I told him, he's 20 gone to Massachusetts for school. The man was not satisfied by this and began 2t arguing with me about what my wife had told him before in October when he served 22 her with a subpoena. I said that was before and now he's gone. He comes and goes 23 24 and I want you to leave and I don't want to talk anymore about it. That's it. 25 6. The man left. Some time later, a few weeks or so, my wife told me someone had left 26 a bunch ofpapers on the front door for Cody. 27 28 DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM 7. My son told me that there's some people he doesn't know that are trying to sue him 2 for something a lawyer did when he worked for him years ago. He asked me to write 3 down what happened with the process server and my wife would type it up and have 4 me sign it. 5 6 8. She has typed up what I have written down as my best recollection of what happened. 7 I am 79 years old. 8 I declare under penalty of perjury under the laws of the State of California that the 9 foregoing is true and correct. 10 Dated: May 18, 2023 11 12 13 Richard Molica 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM I Cody Molica 1029 North Road, #175 2 Westfield, MA 01085 J (6te) 693-7896 cmolical 1@gma-il,com Cross-Defendant in Pro Per SUPERIOR COURT OF CALIFORNIA COLINTY OF SANTA CRUZ JASON NEEL Case No.: 22CVOL758 Plaintiff, 1l vs. DECLARATION OF BEVERLY MOLICA SUPPORT OF REPLY MEMORANDUM IN 12 SUPERIOR LOAN SERVICING; ASSET SUPPORT OF CROSS-DEFENDANT CODY MOLICA'S NOTICE OF MOTION AND 13 DEFAULT MANAGEMENT, INC., LINITED MOTION TO QUASH SERVICE OF STATES REAL ESTATE CORPORATION; t4 suMMoNS ICODE CrV. PROC $ CNA EQUITIES GROUP, LLC; AND 418.10(AX1 l5 RUSHMYFILE, BUSINESS ENTITY FORM UNKNOWN, and VIGIL REAL ESTATE, DEPT.5 t6 BUSINESS ENTITY FORM IINKNOWN and ACTION FILED O8I 1612022 17 DOES 1-50, inclusive, Defendants. HON. TIMOTHY VOLKMANN 18 HEARING:5125123 TIME: 9AM 19 I.INITED STATES REAL ESTATE CORPORATION, Cross-Complainant, UNLIMITED CIVIL ACTION 20 V. JASON NEEL, CNA EQUITY GROUP, INC, A professional corporation, RUSHMYFILE, INC, a Califomia corporation, CODY MOLICA, and ROES 1-50, inclusive, Cross-Defendants. DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM 1 2 I, Beverly Molica, declares as follows: J 1. The following is my own testimony, which I could and would testifu to if called upon 4 to do so. It is of my owrt personal knowledge, except those matters alleged on 5 6 information and belief, and of those matters I believe them to be true. 7 2. I live with my husband Richard Molica at 4360 Stony Point Road, Santa Rosa, CA. 8 a Late last year, a man was coming around with papers asking for my son and wanted 9 to know where he's been. I asked my husband what to say and he said not to talk to l0 him. He came around a bunch of times between October and December of last year. ll 12 He may have come around in January also I do not remember. I don't remember l3 exactly what I said to him because I was scared. I told him my son wasn't here and t4 shut the door. Other times I would recognize him and not answer the door. l5 4. He would bang on the door and yell for Cody. Sometimes he would leave big pac 16 of paper on the door and not say what they were. 17 l8 5. My son moved to Massachusetts last year to attend school and then moved back this 19 yeat. 20 I declare under penalty of perjury under the laws of the State of California that the 2t foregoing is true and correct. 22 Dated: May 18,2023 ZJ 24 25 Beverly Molica 26 27 28 DECLARATION OF RICHARD MOLICA IN SUPPORT OF REPLY MEMORANDUM