MCKAGUE LAW GROUP, PC vs SHIRLEY

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/23/2025 Hearing on Motion to Quash Service Answer and Cross-Complaint in Department 53

Tentative Ruling

NOTICE: PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division – Wednesday Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 25, located at 720 9th Street, Sacramento, CA, the Hon. Julie G. Yap presiding. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the hearing, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

The Court encourages parties to appear remotely for the hearing on the tentative ruling through the Court’s Zoom Application. But, any party wishing to appear in person may do so, provided that party notifies the Court by 4:00 the Court day before the hearing. The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link: https://saccourt-ca-gov.zoomgov.com/my/sscdept25 SIP Address: 16113421868@sip.zoomgov.com (833) 568-8864 ID: 16113421868 Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956.

Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/23/2025 Hearing on Motion to Quash Service Answer and Cross-Complaint in Department 53

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided

TENTATIVE RULING

Defendant’s Notice of Motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Defendant is directed to contact opposing counsel forthwith to advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If Defendant is unable to contact opposing counsel prior to the hearing, Defendant shall be available at the hearing, in person or remotely (telephonically or by video conference via Zoom as stated in the introductory notice to today’s tentative rulings), in the event opposing counsel appears without following the procedures set forth in Local Rule 1.06(B).

Defendant Nathan Cole’s (“Defendant Cole”) Motion to Quash Service of Answer and Cross- Complaint is ruled upon as follows.

Factual Background

This is an interpleader action arising from an underlying lawsuit that resulted in a settlement. Defendant Cole now moves for an order quashing service of the Answer and Cross-Complaint served by Defendants Lori McCracken, Gary Shirley, and Elaine Shirley (“Cross- Complainants”) pursuant to Code of Civil Procedure section 418.10(a)(1). Defendant Cole contends that he was not properly served, and thus service should be quashed.

Cross-Complainants oppose, arguing that the answer and cross-complainant were properly served via substitute service following multiple attempts at personal service. Cross Complainants seeks sanctions in the amount of $2040.00 under Code of Civil Procedure § 128.7 based, in part, on Defendant Cole’s failure to provide evidence to meet his burden of proof in the underlying motion.

Discussion

Defendant argues that Cross-Complainants failed to properly serve him, as the proof of service does not describe anyone who lives in his home. However, Defendant does not provide any declaration attesting to these facts.

“When a defendant [here, a Cross-Defendant] challenges the court's personal jurisdiction on the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 06/23/2025 Hearing on Motion to Quash Service Answer and Cross-Complaint in Department 53

ground of improper service of process the burden is on the plaintiff [here, a Cross-Complainant] to prove the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (internal quotes omitted); see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.)

Cross-Complainants’ proof of service of the Answer and Cross Complaint is signed by a process server registered in Nevada.[1] (Exh. A to Bowen Decl.) The proof of service includes a declaration of due diligence, showing 4 prior attempts at service at the home address, proof of service by substitute service with a woman who identified herself as a family member (“Mother in Law”), and proof of service by mail. (Id.) During the first prior attempt, the person who the process server spoke with stated that “THE SUBJECT IS NOT HOME UNTIL LATER TONIGHT.” (Id.) Cross-Complainants further present evidence that Cross-Complainant Lori McCracken is aware that Defendant Cole’s primary residence is 16235 Indian Springs Ranch Road – the location of prior attempts in the Affidavit of Due Diligence and the location of substituted service – because McCracken and Cole share custody of their two daughters.

Defendant Cole submits no sworn declaration or other admissible evidence in support of his motion or in opposition to Cross-Complainant’s evidence. As a result, the Court finds that Cross-Complainants have met their burden, and Defendant Cole has offered no evidence to the contrary.

As a result, Defendant’s motion to quash service of Answer and Cross-Complaint is DENIED.

Cross-Complainants’ request for monetary sanctions pursuant to CCP 128.7 is DENIED, as Cross-Complainants have not met the bare minimum of statutory requirements to request such sanctions, including failure to file a separate motion and observance of the statutory safe harbor. (CCP § 128.7(c).)

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.

[1] As the process server does not appear to be registered pursuant to Chapter 16 of Division 8 of California’s

Business and Professions Code, it does not appear that the presumption set forth in Evidence Code § 647 applies. Cross-Complainant’s assertion that it was a registered process server – when the proofs of service expressly denote the signatory is not a registered process server – is concerning.