AUSSIEKER vs CMS, INC, et al.

25CV000864: AUSSIEKER vs CMS, INC, et al. 09/25/2025 Hearing on Motion for Reconsideration in Department 53

Tentative Ruling

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25CV000864: AUSSIEKER vs CMS, INC, et al. 09/25/2025 Hearing on Motion for Reconsideration in Department 53

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

TENTATIVE RULING:

Pro Per Plaintiff Mark Aussieker’s (“Plaintiff”) motion for reconsideration of the Court’s July 11, 2025 order granting Defendants 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.

Background

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.

Defendants moved to quash pursuant to Code of Civil Procedure sections 418.10, subdivision (a)(1), 1987.1, and 2025.410 on the grounds that Plaintiff failed to effect proper service of the Summons and Complaint and instead improperly attempted to substitute service via a facially defective and blank subpoena form that was not properly served on Defendants. Defendants moved to quash service of the summons and further requested that the Court quash the deposition subpoena and dismiss the action.

Prior to the hearing, Plaintiff did not file a proof of service of the summons and complaint on Defendants. Plaintiff also did not file a written opposition. However, Plaintiff appeared at the hearing and argued, among other points, that he was not properly served with Defendant’s motion to quash. Plaintiff stated that he did not know of the hearing until Defendant’s counsel called him the evening prior to the hearing to advise of the Court’s tentative ruling. Plaintiff also argued that he had properly served Defendants in this action with the summons and complaint and that he had submitted for filing a proof of service prior to the hearing. However, no proof of service of the summons and complaint appeared in the Court’s records at the time of the hearing.

The Court took the matter under submission, and later modified and affirmed its tentative ruling granting the motion to quash service of summons and denying Defendants’ other requests to quash the deposition subpoena and to dismiss the action. A certificate of mailing dated July 14, 2025 was attached to the submitted matter ruling.

On July 22, 2025, Plaintiff filed the instant motion for reconsideration. Defendants did not file an opposition.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 09/25/2025 Hearing on Motion for Reconsideration in Department 53

The Court also notes that the Register of Actions reflects that the Court’s service of its own order of July 22, 2025 (which advanced the hearing of the present motion) to Defendants’ counsel’s address of record was returned undelivered. Despite the fact that the Court’s order was sent to Defendants’ counsel’s address of record (as indicated on its prior motion to quash), the order was returned undelivered with no forwarding address. Defendants’ counsel was and remains required to update the Court with its current service address.

Legal Standard

Code of Civil Procedure section 1008 provides, in part:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(e) This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

The 10-day time limit “is designed to conserve the court’s resources by constraining litigants who would attempt to bring the same motion over and over.” (Darling v. Kritt (1999) 75 Cal.App.4th 1148, 1157.) Although the Court retains inherent authority to reconsider prior orders on its own motion (Code Civ. Proc. § 1000, subd. (c)), the time limitation set forth in section 1008, subdivision (a), is jurisdictional and controlling as to applications for reconsideration by the parties to an action (Code Civ. Proc. § 1008, subd. (e); Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391).

Discussion

Plaintiff timely seeks the Court’s reconsideration of its order granting Defendants’ motion to quash service of summons. First, Plaintiff argues that he was not properly served with the motion.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 09/25/2025 Hearing on Motion for Reconsideration in Department 53

In support of Plaintiff’s contention that he was not properly served, Plaintiff provides a declaration averring that the first and only notice he received of the motion was a voicemail left by opposing counsel the night before the hearing. (Declaration of Mark Aussieker, ¶ 3.) Plaintiff further declares that between March 19, when the motion was served, and March 26, 2025, he reviewed his USPS Informed Delivery records each day, and that no mail from opposing counsel appeared in any of the scanned previews or delivery summaries. (Id., ¶ 5.)

“[W]hen one party says it mailed a notice, but the opposing party denies receipt, ‘[t]he trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the [notice] was received.’” (Gilman v. Dalby (2021) 61 Cal.App.5th 923, 938.) “[A] presumption of receipt is rebutted upon testimony denying receipt.” (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486.) Here, Plaintiff declaration is sufficient to rebut the presumption that he received notice of the motion.

Defendants do not oppose the motion. A party’s failure to oppose a motion is construed 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.) The Court notes that Plaintiff’s Proof of Electronic Service, filed on August 26, 2025, indicates that Defendants’ counsel was serve via electronic mail at “reshmakamath2021.gmail.com,” which is the correct email address provided by Defendants’ counsel on its prior motion to quash. Thus, on its face, service appears to have been proper.

Based on the evidence presented, the Court finds that Plaintiff was not properly served with Defendants’ motion to quash service of summons. Defective service deprives the court of jurisdiction to act. (See Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

Because the Court concludes that Plaintiff was not properly served such that Defendants’ motion to quash is deemed dropped, the Court shall not consider Plaintiff’s other arguments or otherwise rule on the issue of service of the summons and complaint. Indeed, to do so would be improper here given that no jurisdiction exists for the Court to rule substantively on Defendant’s motion to quash and Plaintiff does not waive such jurisdictional defect.

Disposition

Accordingly, Plaintiff’s motion for reconsideration is GRANTED. In light of the evidence presented, the Court’s Order dated July 11, 2025 granting Defendants’ motion to quash is VACATED and the motion to quash is DROPPED from calendar due to defective service.

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.)