Memorandum Points and Authorities

Cal. Super. - 6th Dist.April 1, 2021

1 Robert F. Bennett, Jr. State Bar No. 264561 2 POWERS MILLER A Professional Corporation 3 3500 Douglas Blvd, Suite 100 Roseville, California 95661 4 Telephone No. (916) 924-7900 Telecopier No. (916) 924-7980 5 Attorneys for, 6 Raymond Wing Chon Cheh (erroneously served in this 7 action as defendant RAYMOND CHEH) 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 12 ROSA M. CASTRO, 13 Plaintiff, 14 vs 15 WENNY LU, RAYMOND CHEH, 16 Case No. 21CV381539 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS 17 Defendants. DATE: TIME: DEPT: 19 COMPLAINT FILED: April 1, 2021 TRIAL DATE: None 20 21 22 INTRODUCTION 23 Non-party to this case, Raymond Wing Chon Cheh, files this 24 motion to contest service of the Summons and Complaint upon him. 25 Raymond Wing Chon Cheh was not involved in the accident pled in the 26 Complaint to this action and therefore seeks an order quashing the 27 service of the Summons in this case. To date plaintiff, through 28 her attorney, has yet to provide any documentary evidence MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/15/2021 10:02 AM Reviewed By: Tunisia Turner Case #21CV381539 Envelope: 7472076 21CV381539 Santa Clara - Civil Tunisia Turner 1 connecting Raymond Wing Chon Cheh to the accident which is the 2 subject of plaintiff's Complaint. FACTS Plaintiff's Complaint centers upon damages resulting from a 6 car accident in Gilroy on April 1, 2019. (See Declaration of 7 Robert F. Bennett, Jr, hereinafter "Bennett Decl."; 5( 2) In the 8 Complaint, plaintiff alleges defendant RAYNOND CHEH was operating 9 a vehicle owned by defendant WENNY LU. (Bennett Decl. 5(2) Plaintiff 10 alleges defendant RAYMOND CHEH negligently operated his vehicle 11 causing a collision with the vehicle operated by plaintiff. 12 (Bennett Decl. '12) Upon information and belief, there is no police 13 report for this accident. (Bennett Decl. 5(2) 14 Raymond Wing Chon Cheh has been a resident of Sunnyvale since 15 2005. (See declaration of Raymond Wing Chon Cheh, hereinafter 16 "Cheh Decl." 5(l) Raymond Wing Chon Cheh was not involved in a car 17 accident on April 1, 2019. (Cheh Decl. 'J(2) Raymond Wing Chon Cheh 18 was not nor travel through Gilroy on April 1, 2019. (Cheh Decl. 19 5(2) Raymond Wing Chon Cheh does not know defendant WENNY LU or 20 plai.ntiff ROSA CASTRO. (Cheh Decl. 5(2) 21 On April 1, 2019, Raymond Wing Chon Cheh was employed by Volta 22 Network, as a principle engineer and worked out of his home in 23 Sunnyvale. (Cheh Decl. 5(4) On April 1, 2019, Raymond Wing Chon 24 Cheh sent several emails from his home office. (Cheh Decl. 5(4) On 25 April 1, 2019, Raymond Wing Chon Cheh was in Sunnyvale, Santa Clara 26 and Nilpitas. (Cheh Decl. 'J(3) 27 On August 31, 2021, Raymond Wing Chon Cheh was served with the 28 Summons and Complaint. (Bennett Decl. 'JI3) Following defense POWERS MiLLER A Professional Corporation MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION To QUASH SERVICE OF SUMMONS 1 counsel's retention, defendant conferred with the plaintiff to gain 2 information connecting Raymond Wing Chon Cheh to the subject 3 accident. (Bennett Decl. %3) To date, no information connect.ing 4 Raymond Wing Chon Cheh to the accident has ever been provided. 5 (Bennett Decl. 'l(3) Plaintiff previously extended the deadline for 6 the responsive pleading based on the purported service through 7 October 15, 2021. (Bennett Decl. 'I3) Plaintiff has declined to 8 agree to waive the prior service upon Raymond Wing Chon 9 Cheh.(Bennett Decl. '13) As a result, this motion has become 10 necessary. 12 13 LAW AND ARGUMENT Code of Civil Procedure section 418.10 states that: 14 15 16 17 (a) 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, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. 18 Service of a summons upon a person or entity not named as a 19 party to an action is not valid. Fuss v. Ci ty of Ios Angeles, 162 20 Cal .App .2d 643 (1958); Cal . Code Civ. Pro . 5 418 . 10 (a) (1), Cal . 21 Code Civ. Pro. 5 474. The Court has no jurisdiction over an 22 improperly served party that does not voluntarily appear. A 23 judgment entered without jurisdiction over the party subject to 24 judgment is void. (Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 25 834) Once the motion to quash is filed, Plaintiff has the burden to 27 prove that service was legally sufficient. In the interim, the 28 Defendant is under no legal obligation to respond to the defective POWERS MILLER A Professional Corporstion NENORANDUN OF POINTS AND AUTHORITIES IN SUPPORT OF NOTION To QUASH SERVICE OF SUMMONS 1 Summons until the Plaintiff demonstrates validity of service by 2 evidence. (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 3 991) A. Raymond Wing Chon Cheh of Sunnyvale was not involved in the subject accident and therefore an order quashingservice of the Summons is proper. 6 As established by the declaration of Raymond Wing Chon Cheh, 7 he was not involved in the accident alleged in the Complaint. 8 Based upon his own records, he was in Sunnyvale for most of the day 9 except for a portion where he traveled to Santa Clara and Milpitas. 10 Raymond Wing Chon Cheh does not know the defendant WENNY LU or 11 plaintiff ROSA CASTRO. Raymond Wing Chan Cheh has declared under 12 penalty of perjury that he was not involved in the subject 13 accident, and that he was not in or traveling through Gilroy on 14 April 1, 2019. IV. 16 CONCLUSION 17 Raymond Wing Chon Cheh of Sunnyvale is not the named defendant 18 in this action, RAYMOND CHEH. He was not involved in the accident 19 which is the subject of plaintiff's Complaint. As a result, an 20 order quashing service of the Sufftfnons upon Raymond Wing Chon Cheh 21 is proper. 22 DATED: October 15, 2021 23 POWERS MILLER 25 26 27 Robert F. Bennett, Jr. Attorneys for Defendant Raymond Wing Chon Cheh (erroneously served in this action as defendant RAYMOND CHEH) 28 NENORANDUioi OF POINTS AND AUTHORITIES IN SUPPORT OF NOTION TO QUASH SERVICE OF A Professional Corporation SUMMONS 1 CASTRO v. LU Santa Clara County Superior Court No. 21CV381539 2 PROOF OF SERVICE 3 I am a citizen of the United States, employed in the County of 4 Placer, State of California. My business address is 3500 DouglasBoulevard, Suite 100, Roseville, California 95661. I am over the 5 age of 18 years and not a party to the above-entitled action. 6 On October 15, 2021, I caused the within MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS, 7 the original of which was produced on recycled paper, to be servedas follows: 8 10 12 13 14 15 16 17 18 XX MAIL - I am readily familiar with Powers Miller' practice forcollection and processing of correspondence for mailing withthe United States Postal Services. Pursuant to said practice,each document is placed in an envelope, the envelope issealed, the appropriate postage is placed thereon and thesealed envelope is placed in the office mail receptacle. Eachday's mail is collected and deposited in a U.S. mailbox atRoseville, California at or before the close of each day'business. (CCP Section 1013a(3) .) FACSIMILE - October 15, 2021 at a.m./p.m., by use offacsimile machine telephone number (916) 924-7980, I served atrue copy of the aforementioned document(s) on the parties insaid action by transmitting by facsimile machine to the numbers as set forth below. The facsimile machine I used complied with California Rules of Court, Rule 2003(3) and noerror was reported by the machine. Pursuant to California Rules of Court, Rule 2008(e), I caused the machine to print atransmission records of the transmission, a copy of which isattached to this Declaration. 19 20 OVERNIGHT COURIER - By causing a true copy and/or originalthereof to be personally delivered via the following overnightcourier service. 22 EMAIL - October 15, 2021, pursuant to the agreement of theparties, by use of email, I served a true copy of theaforementioned document(s) on the parties in said action tothe email addresses as listed below. 23 Owili K. Eison 24 Banafsheh, Danesh & Javid, PC 9701 Wilshire Blvd, 12'" Floor 25 Beverly Hills, CA 90212 26 I declare under penalty of perjury under the laws of the Stateof California that the foregoing is true and correct, and that this 27 declaration was California. 28 executed on Gc er 15, 2021, at Roseville, EAHRMA EWS