AUSSIEKER vs CMS, INC, et al.

25CV000864: AUSSIEKER vs CMS, INC, et al. 02/23/2026 Hearing on Motion to Quash Service of Process and Detective Subpoena in Department 25

Tentative Ruling

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you 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 and advise opposing counsel. 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.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 25 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept25 and the Zoom Meeting ID is 161 1342 1868. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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

25CV000864: AUSSIEKER vs CMS, INC, et al. 02/23/2026 Hearing on Motion to Quash Service of Process and Detective Subpoena in Department 25

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

TENTATIVE RULING:

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing party and advise 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 opposing party prior to the hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

The motion of Defendants CMS, Inc. d/b/a Card Member Services (“CMS”) and Homes Panorama LLC (“Defendants”) to quash “both Plaintiff’s attempted service of the Complaint and the defective Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents” is ruled upon as follows.

Background

Plaintiff, in pro per, Mark Aussieker (“Plaintiff”) commenced this action by filing his complaint on January 13, 2025. Plaintiff 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.

On July 11, 2025, the Court granted Defendants’ initial motion to quash service of process and defective subpoena in part. (7/10/25 Order.) Following oral argument, 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. (7/11/25 Order re: Ruling on Submitted Matter.)

On September 25, 2025, the Court granted reconsideration (of the Court’s prior July 11,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 02/23/2026 Hearing on Motion to Quash Service of Process and Detective Subpoena in Department 25

2025, Order), and determined: “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.” (9/25/25 Order.) In its September 25, 2025, Order, the Court found:

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.

(Ibid.)

Discussion

On September 25, 2025, Defendant filed the instant motion seeking similar relief. Defendant again 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 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 02/23/2026 Hearing on Motion to Quash Service of Process and Detective Subpoena in Department 25

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. (Ibid.) “[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.

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove . . . the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) Relying on Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, the Summers Court stated: “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process, ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers, supra, 140 Cal.App.4th at 413.)

Moreover, California law requires that the plaintiff prove valid service and personal jurisdiction by a preponderance of the evidence. (Floveyer Intl., Ltd. v. Superior Court (Schick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 793-794.)

Because Defendants have properly moved to quash service of the summons, the burden is on Plaintiff to show effective service. Here, in opposition, Plaintiff contends that, “[t]he motion is frivolous, procedurally defective, and unsupported by admissible evidence. It disregards the valid Proof of Service of Summons already on file with the Court (filed July 10, 2025) and fails to identify any factual defect or provide a declaration under penalty of perjury.” (Opp’n, p. 2:3-5.) Specifically, Plaintiff argues, “the Florida Articles of Organization (attached as Exhibit A),” identify “Thomas Way as an Authorized Member of Homes Panorama LLC.” (Id., p. 2:21-22, Exh.

A.) As such, Plaintiff contends that service on Thomas Way, an authorized member actively involved in the company’s operations, satisfied § 416.40(b) “because he qualifies both as a person authorized by the association to receive service and as a head of the association within the meaning of the statute.” (Id., p. 2:24-27.) By way of signed declaration, Plaintiff states, “[o]n January 23, 2025, Defendant HOMES PANORAMA LLC was personally served with the Summons, Complaint, a completed Judicial Council Form DISC-010 (Case Questionnaire), and a blank copy of DISC-010 as required under California Code of Civil Procedure section 93.” (Aussieker Decl., ¶ 2.)

Under Code of Civil Procedure sections 416.10 and 416.40, service on a business entity

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 02/23/2026 Hearing on Motion to Quash Service of Process and Detective Subpoena in Department 25

must be made on a registered agent, a current officer, managing agent, or general manager, or a person specifically authorized by law or court order.

According to the Court’s Register of Action, on July 10, 2025, Plaintiff filed a proof of service indicating that on January 23, 2025, “Homes Panorama LLC., Co Thomas or Phyllis Way,” were served with a copy of the Summons and Complaint. (Proof of Personal Service, filed 7/10/25.) The proof of service indicates that service was made “C/o Thomas or Phyllis Way” at the address “390 Padova Way, North Venice, FL 34275.” (Ibid.) It appears that the Proof of Service, signed by a registered process server[1], sets forth personal service of Defendant Homes Panorama LLC.

The Court notes that Defendants do not address this proof of personal service in their moving papers and did not file a reply. As such, Defendants have not provided the Court any argument regarding any insufficiency with the Proof of Personal Service.

For the foregoing reasons, Defendants’ motion to quash as to Defendant Homes Panorama LLC is DENIED.

However, with respect to Defendant CMS, Defendant raises no argument and submits no evidence (or proof of service) regarding proper service on this Defendant in his Opposition. The Court’s review of the docket does not appear to show a filing of Proof of Service regarding Defendant CMS. Accordingly, Defendants’ motion to quash as to Defendant CMS is GRANTED.

Defendants’ alternative request to quash the deposition subpoena is again 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.[2] Further, in his Opposition, Plaintiff asserts that “Plaintiff did not serve Defendant CMS with a civil subpoena” and Plaintiff declares that he “did not serve defendant with a subpoena” after discussing service on Defendant Homes Panorama LLC. (Opp’n at p.1:25; Pl. Decl. ¶¶ 2-3.)

Finally, Defendants again 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV000864: AUSSIEKER vs CMS, INC, et al. 02/23/2026 Hearing on Motion to Quash Service of Process and Detective Subpoena in Department 25

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 even where a motion to quash for deficient service has been granted. And, as set forth above, the motion to quash as to Defendant Homes Panorama LLC is denied.

Disposition

Defendants’ motion to quash “both Plaintiff’s attempted service of the Complaint and the defective Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents” is GRANTED in part and DENIED in part as set forth herein.

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

[1] It is unclear whether the process server is registered in California or Florida.

[2] 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.