Motion to Quash Service of Summons and Complaint; Request for sanctions
24CV005982: CHAO vs CHAN 10/15/2024 Hearing on Motion to Quash Service of Summons and Complaint in Department 54
Tentative Ruling
Pro per Defendant Trevin Vincent Chans (Defendant) motion to quash service of summons and complaint is DENIED.
Defendant filed an answer to the complaint on July 8, 2024. Filing an answer constitutes a general appearance. (Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135.) A general appearance waives irregularities in the service of process. (Kriebel v. City of San Diego, City Council (1980) 112 Cal.App.3d 693, 700.)
The Court notes that although a Defendant may make a motion to quash and file an answer simultaneously (Code Civ. Proc. §418.10(e)), Defendant filed this motion on July 16, 2024 eight days after he filed his answer.
In opposition to the motion, Plaintiff requests sanctions pursuant to Code of Civil Procedure section 128.5. Plaintiffs request is DENIED. Code of Civil Procedure section 128.5 requires a noticed motion that is made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay. That section also provides that, [i]f the alleged action or tactic is the making or opposing of a written motion. . ., a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected. (Code Civ. Proc. §128.5(f)(1)(A)-(B).)
This minute order is effective immediately. No formal order or other notice is required. (
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24CV005982: CHAO vs CHAN 10/15/2024 Hearing on Motion to Quash Service of Summons and Complaint in Department 54
request for oral argument is made, the tentative ruling becomes the final order of the Court.
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