AUSSIEKER vs CMS, INC, et al.

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 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

25CV000864: AUSSIEKER vs CMS, INC, et al. 07/10/2025 Hearing on Motion to Quash Service of Summons in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Moving party has indicated the incorrect address in its notice of motion. The correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Moving party shall notify responding party(ies) immediately.

Moving counsel’s notice of motion does not provide full notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Plaintiff and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Plaintiff prior to hearing, moving counsel is ordered to appear at the hearing.

Defendant CMS, Inc. dba Card Member Services and Homes Panorama LLC (“Defendants”) motion to quash service of process and defective subpoena is ruled upon as follows.

In this action, Plaintiff, in pro per, alleges Defendants have placed telemarketing calls to his phone without consent, thereby violating the Telephone Consumer Protection Act, 47 U.S.C. section 227.) Plaintiff alleges that Defendants offered him “debt relief services,” engaged in credit card laundering, and engaged in deceptive telemarketing practices. Plaintiff alleges two “counts” against Defendants for (1) violation of the Telephone Consumer Protection Act and (2) Violation of the California Debt Settlement Providers Act, Civil Code section 1788.305.

Defendant moves to quash pursuant to Code of Civil Procedure sections 418.10, subdivision (a)(1), 1987.1, and 2025.410 on the grounds that Plaintiff has failed to effect proper service of the Summons and Complaint and has instead improperly attempted to substitute service via a facially defective and blank subpoena form that was not properly served on Defendants. In the moving papers, Defendants assert Plaintiff attempted to effectuate service by providing a Judicial Counsel Form SUBP-002 “Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents” that contains only basic header information but is otherwise entirely blank. Defendants state the subpoena lacks any specification of date, time, or place for appearance, contains no description whatsoever of documents to be produced, includes no supporting declaration, and provides no proof of service.

Code of Civil Procedure section 418.10, subdivision (a)(1) allows a defendant “on or before the last day of his or her time to plead or within any further time that the court

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 07/10/2025 Hearing on Motion to Quash Service of Summons in Department 53

may for good cause allow” to file and service a notice of motion “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “A defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesman Demag v. Superior Court (1985) 172 Cal.App.3d 1118, 1124.) Service of a substantially defective summons does not confer jurisdiction over a party. (Id.) “[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.' (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211.)

Because Defendants have properly moved to quash service of the summons, the burden is on Plaintiff to show effective service. Plaintiff has failed to file an opposition, which the Court construes as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.) Therefore, Plaintiff has not met his burden.

The motion to quash the service of the Complaint is GRANTED.

Defendants’ alternative request to quash the deposition subpoena is DENIED without prejudice. First, Defendants fail to attach the purportedly defective subpoena to the motion. Thus, there is no evidence from which the Court could rule regarding any defects contained in the subpoena. The Court does not consider the issued subpoenas in the Register of Action as they are not made part of this motion in anyway. The Court will note, however, that deposition subpoenas are generally not a proper form of discovery to a party, but rather, typically used when seeking discovery from third parties.

The Court’s denial of this part of the motion does not preclude Defendants from making any appropriate objections to any subpoena. To the extent that Defendants intended to refer to a deposition notice to a party (as opposed to a deposition subpoena), the Court notes that Code of Civil Procedure section 2025.410, subdivision (c) requires that a motion to quash a deposition notice “shall be accompanied by a meet and confer declaration under Section 2016.040.” Defendants have not attached any declaration in support of its motion.

Thus, the Defendants have also not provided sufficient evidence to support this ground of their motion to the extent it is directed to a deposition notice.

Finally, Defendants request in the moving papers that the Court dismiss the action without prejudice if it grants the motion to quash service of the summons. However, Defendants’ notice of motion does not provide notice of this request. As a result, it does not comply with California Rules of Court, rule 3.1110(a) and Code of Civil Procedure section 1010, which require the moving party to state the grounds for the motion in its notice of motion. Thus, Defendants’ request to dismiss the action is DENIED. Furthermore, the Court notes that even if notice had been given, Defendants provide no authority requiring an action to be dismissed where a motion to quash for deficient

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 07/10/2025 Hearing on Motion to Quash Service of Summons in Department 53

service has been granted.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; Cal. Rules of Court, rule 3.1312.)