Sheridan Oberbeck vs. Michael Villa

Opposition

Cal. Super. - 4th Dist.May 18, 2016

10 11 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 Brent W. Caldwell, Esq. (SBN 228950) Brett L. Shegda, Esq. (SBN 294903) ELECTRONICALLY FILED Jeff L. Fayngor, Esq. (SBN 304000) Superior Court of California, Law Office of Brent W. Caldwell, APLC County of Orange 20042 Beach Blvd, Suite 100 Huntington Beach, CA 92648 ANO-telkiix mi: 04 32:00 Phd P: (714) 625-8914 Clerk of the Superior Court be 14) 625-8918 By Enrique “loz, Deputy Clerk Attorney for Plaintiff, SHERIDAN OBERBECK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER SHERIDAN OBERBECK, An Individual, ) Case No.: 30-2016-00853078-CU-MM-CJC ) Plaintiff ) PLAINTIFF SHERIDAN OBERBECK amt, ) OPPOSITION TO DEFENDANT ) MICHAEL VILLA’S MOTION TO VS. ) QUASH SERVICE OF SUMMONS ) MICHAEL VILLA, An Individual; BED ) ] HEADS AN UNKNOWN ENTITY and RESERVATION NO: 72442695 DOES 1 through 10, Inclusive, ) Hearing Date: October 17,2016 ) Hearing Time: 9:00 a.m. Defendants. ) Dept. Clo ) Judge: Hon. Judge BAUER ) Action Filed: May 18, 2016 ) I. INTRODUCTION This action involves a two-vehicle accident wherein Plaintiff was rear ended by Defendant MICHAEL VILLA (hereinafter VILLA) on or around May 21 2014, in Costa Mesa California. On or around August 11, 2016 Plaintiff’s process server personally served VILLA. II. BACKGROUND On August 11, 2016, Plaintiff process server Bill Gonzalez, served VILLA by Personal Service with Plaintiff’s Summons, Complaint, Alternative Dispute Package, Civil Case Coversheet, and Filed Amended Complaint. (Gonzalez Declaration, at para. 8) (Exhibit 1., 1 PLAINTIFF SHERIDAN OBERBECK OPPOSITION TO DEFENDANT MICHAEL VILLA’S MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 Proof of Service) On September 09, 2016, VILLA served Plaintiff with a Motion To Quash Service of Summons. (Exhibit 2., Villa Proof of Service) III. FACTUAL AND LEGAL BASIS Plaintiff’s process server properly effectuated Personal Service on VILLA in compliance with the provisions of the Code of Civil Procedure Section 415.10 et seq. in that Plaintiff’s Process Server served the documents on an individual named “Mike” residing at VILLA’S last known address. (Gonzalez Declaration, at para. 6) Filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration complies with the statutory requirements regarding such proofs. Lebel v. Mai, 210 Cal. App. 4th 1154, 1160, 148 Cal. Rptr. 3d 892, 896 (2d Dist. 2012) A. Plaintiff has met the burden of establishing that service was proper. As stated in Defendant VILLAS brief: “A motion to quash service of summons, based upon an allegation of improper service, must be granted unless the Plaintiff proves effective service. As the court explained in Sheard v. Superior Court (1974) 40 Cal. App. 3d 207, at 211: [Wlhere a defendant properly moves to quash service of Summons the burden is on the Plaintiff to prove facts requisite to effective service” Filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration complies with the statutory requirements regarding such proofs. Lebel v. Mai, 210 Cal. App. 4th 1154, 1160, 148 Cal. Rptr. 3d 892, 896 (2d Dist. 2012). Here, Plaintiff filed a proof of service declaration, which complied with all the statutory requirements. (Exhibit 1., Proof of Service) As such, based on the Lebal court, Plaintiff has met her burden and in turn created a presumption of proper service, which Defendant VILLA must rebut. 1 2 PLAINTIFF SHERIDAN OBERBECK OPPOSITION TO DEFENDANT MICHAEL VILLA’S MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 B. Defendant has not rebutted the presumption that Plaintiff’s service was proper. The only evidence Defendant VILLA has promulgated showing that service was improper is a signed declaration stating that he actually lives in Haiku, Hawaii. (Exhibit 3., VILLA Dec) Defendant has failed to produce a proper mailing address or any independent documentation suggesting that he lives in Haiku. As a party with personal interests related to the service of this lawsuit, Defendant VILLA’S declaration should be examined with the utmost scrutiny. Furthermore, in direct contradiction to Defendant VILLA’S declaration, Plaintiff’s process server has provided both a signed proof of service as well as a signed declaration stating that he in fact served an evasive individual named “Mike” at Defendant VILLA’S last known address. (Gonzalez Declaration, at para. 6) (Exhibit 1., Proof of Service) As a party with no pecuniary interest in the outcome of this litigation, Plaintiff’s process serve’s Proof of Service as well as signed declaration should be weighed more heavily than the declaration of an interested party. IV. Conclusion For the reasons set forth herein, Plaintiff SHERIDAN OBERBECK respectfully requests that this Honorable Court deny moving parties motion to quash service of Summons and Complaint. LAW OFFICES OF BRENT W. CALDWELL ( Dated: October 5, 2016 7 1 Af awe Esq. Brett Shiegda, Esq. Jeff L. Fayngor, Esq. Attorney for Plaintiff, SHERIDAN OBERBECK 3 PLAINTIFF SHERIDAN OBERBECK OPPOSITION TO DEFENDANT MICHAEL VILLA’S MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brent W. Caldwell, Esq. (SBN 228950) Brett L. Shegda, Esq. (SBN 294903) Jeff L. Fayngor, Esq. (SBN 304000) Law Office of Brent W. Caldwell, APLC 20042 Beach Blvd, Suite 100 Huntington Beach, CA 92648 P: (714) 625-8914 F: (714) 625-8918 Attorney for Plaintiff, SHERIDAN OBERBECK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER SHERIDAN OBERBECK, An Individual, ) Case No.: 30-2016-00853078-CU-MM-CJC ) Plaintiff ) DECLARATION OF JEFF L FAYNGOR, anti, ) ESQ. IN SUPPORT OF PLAINTIFFS ) OPPOSITION TO DEFENDANTS VS. ) MOTION TO QUASH ) MICHAEL VILLA, An Individual; BED ) RESERVATION NO: 72442695 HEADS AN UNKNOWN ENTITY and SERVATION N27 DOES 1 through 10, Inclusive, ) Hearing Date: October 17, 2016 ) Hearing Time: 9:00 a.m. Defendants. ) Dept. CX103 ) Judge: Hon. Judge BAUER ) Action Filed: May 18, 2016 ) DECLARATION OF JEFF L. FAYNGOR, ESQ. I, Jeff L. Fayngor, Esq., declare as follows: I. I am an attorney at law duly licensed to practice before all courts of the State of California. I am an attorney employed by The Law Offices of Brent W. Caldwell and I am acting as counsel of record for Plaintiffs SHERIDAN OBERBECK. 2, I have personal knowledge of the facts recited below and if called to testify as a witness in this matter, could and would competently testify to the matters stated herein. 3. Attached as Exhibit 1 is a true and correct copy of the proof of service filled out by Plaintiff’s process server and subsequently filed with the court. 1 DECLARATION OF JEFF L FAYNGOR, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS MOTION TO QUASH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Attached as Exhibit 2 is a true and correct copy of the proof of service attached to Defendant VILLAS signed declaration. 5. Attached as Exhibit 3 is a true and correct copy of Defendant VILLA’S signed declaration provided to Plaintiff. I declare under penalty of perjury and under the laws of the State of California that the foregoing is true and correct. Executed October 5, 2016, at Huntington Beach, California. J fi for ESQ. sy 2 DECLARATION OF JEFF L FAYNGOR, ESQ. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS MOTION TO QUASH EXHIBIT 1 POS-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Brent W. Caldwell, Esq. (SBN 228950 / Brett L. Shegda, 2. (SBN 294903) - Jeff L. Fayngor, Esq. (SBN 30400) Law Offices of Brent W. Caldwell, APLC 20042 Beach Boulevard, Suite 100, Huntington Beach, CA 92648 ELECTRONICALLY FILED TELEPHONE NO.: (714) 625-8914 FAX NO. (Optiona): (714) 625-8918 Superior Court of California, E-MAIL ADDRESS (Optional): County of Orange ATTORNEY FOR (Name): Sheridan Oberbeck, An Individual 0817/2016 at 01:55:00 PM SUPERIOR COURT OF CALIFORNIA, COUNTY OF Orange Clerk of the Superior Court street aporess: 700 W. Civic Center Drive Veit By Maria Gina Barr, Deputy Clerk maine aooress: 700 W. Civic Center Drive West cryanoziecooe: Santa Ana, CA 92701 srancHname: Central Justice Center PLAINTIFF/PETITIONER: Sheridan Oberbeck, An Individual CASE NUMBER: DEFENDANT/RESPONDENT: Michael Villa, An Individual, et al 30-2016-00853078-CU-PA-CIC Ref. No. or File No.: PROOF OF SERVICE OF SUMMONS (Separate proof of service is required for each party served.) 1. Atthe time of service | was at least 18 years of age and not a party to this action. 2. | served copies of: summons complaint Alternative Dispute Resolution (ADR) package Civil Case Cover Sheet (served in complex cases only) cross-complaint other (specify documents): Filed Amendment to Complaint 0 0 0 UT S U R E w o . Party served (specify name of party as shown on documents served): Michael Villa ‘ Eo Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a): oT 4. Address where the party was served: 655 Baker Street # BB104, Costa Mesa, CA 92626 5. |served the party (check proper box) a. by personal service. | personally delivered the documents listed in item 2 to the party or person authorized to receive service of process for the party (1) on (date): 8/11/2016 (2) at (time): 7:30 pm un £1 by substituted service. On (date): at (time): | left the documents listed in item 2 with or in the presence of (name and title or relationship to person indicated in item 3): (1) [] (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. | informed him or her of the general nature of the papers. (2) [] (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. | informed him or her of the general nature of the papers. (3) - (physical address unknown) a person at least 18 years of age apparently in charge at the usual mailing address of the person to be served, other than a United States Postal Service post office box. | informed him or her of the general nature of the papers. (4) El | thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc., § 415.20). | mailed the documents on (date): from (city): or a declaration of mailing is attached. (5) [1 1attach a declaration of diligence stating actions taken first to attempt personal service. Page 1 of 2 Form Adopted for Mandatory Use PROOF OF SERVICE OF SUMMONS Code of Civil Procedure, § 417.10 Judicial Council of California POS-010 [Rev. January 1, 2007] PLAINTIFF/PETITIONER: Sheridan Oberbeck, An Individual CASE NUMBER: | DEFENDANT/RESPONDENT: Michael Villa, An Individual, et al R-STECE-RA LIE 5. ¢. |__| by mail and acknowledgment of receipt of service. | mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid, (1) on (date): (2) from (city): (3) 3] with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed to me. (Attach completed Notice and Acknowledgement of Receipt.) (Code Civ. Proc., § 415.30.) (4) C1] to an address outside California with return receipt requested. (Code Civ. Proc., § 415.40.) d. [1] by other means (specify means of service and authorizing code section): LC] Additional page describing service is attached. 6. The "Notice to the Person Served" (on the summons) was completed as follows: a. as an individual defendant. b. [| asthe person sued under the fictitious name of (specify): & [1 as occupant. 8 LJ On behalf of (specify): under the following Code of Civil Procedure section: [] 416.10 (corporation) [1 415.95 (business organization, form unknown) [J 416.20 (defunct corporation) [1 416.60 (minor) [1 416.30 (joint stock company/association) [_] 416.70 (ward or conservatee) [1 416.40 (association or partnership) [1416.90 (authorized person) [1 416.50 (public entity) [] 415.46 (occupant) [1 other: 7. Person who served papers a. Name: Bill Gonzalez b. Address: 9852 W. Katella Ave, Ste 128, Anaheim, CA 92804 c. Telephone number: 877-259-2553 d. The fee for service was: $75.00 e. lam: (1) not a registered California process server. (2) exempt from registration under Business and Professions Code section 22350(b). (3) Lv_| aregistered California process server: (i) [1 owner [| employee independent contractor. (i) Registration No.: 4001 (iii) County: Orange 8. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. or 9. 1] | am a California sheriff or marshal and | certify that the foregoing is true and correct. Date: 8/15/2016 Bill Gonzalez » (NAME OF PERSON WHO SERVED PAPERS/SHERIFF OR MARSHAL) (SIGNATURE ) PRK Tween PROOF OF SERVICE OF SUMMONS aE EXHIBIT 2 © 00 N oOo Oa Ab L O N = N O N O N RN ND N N ND ND RN 2 @Q QQ Q Q QQ GD 2 a a a 0 ~N oO O A W N = O O OW 0 N oO Oa b~ W O N = O PROOF OF SERVICE (Business Practice to Entrust Deposit to Others California Code of Civil Procedure § 1013 and 1013a) (Oberbeck v Villa) I, Sonja Chambers, declare as follows: % | am over the age of 18 and not a party to this action. My business address is 611 Anton Boulevard, Suite 900, Costa Mesa, California 92626-1904, which is located in Orange County, the county where this mailing occurred. 4 | am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. 3. On September 9, 2016, at my place of business at Costa Mesa, California, the documents described as NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURA L. DAVIDSON and DECLARATION OF MICHAEL VILLA IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS were placed for collection and mailing following ordinary business practices for deposit in the United States Postal Service in a sealed envelope, with postage fully prepaid, addressed to: Brent W. Caldwell, Esq. Law Offices of Brent W. Caldwell 20042 Beach Blvd., Ste. 100 Huntington Beach, CA 92648 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed September 9, 2016, at Costa Mesa, California. Sha mens. Sonja Chambers Ae PROOF OF SERVICE EXHIBIT 3 © 00 N N O O Oa A W N = N O N O N N D N N N D ND ND DN 2 2D QQ 2 GD Ga aS a2 a a 0 ~N O O Oa bh W N 2 O O OW 00 N O O Oa ~~ O N = Oo Declaration of Michael Villa in Support of Motion to Quash Service of Summons Michael Villa declares: L | am named as a defendant in this action. | am over the age of 18. The following facts are within my personal knowledge and if called as a witness, | could and would competently testify thereto. 2 | make this declaration as a special appearance in support of my motion to quash service of summons upon me on the grounds of lack of personal jurisdiction in that | was never properly served with the summons and complaint in this action. 3. As of the date of execution of this declaration, | have never been served with the summons and complaint in this action. | have been told that they exist, but | have not received them myself and have not seen them. To my knowledge, no person in my household has received or been served with the summons and complaint. 4. | have been informed that the Court has a proof of service on file in this action, reflecting that | was purportedly personally served at 655 Baker Street # BB104, Costa Mesa, California 92626 on August 11, 2016. | only resided at this address for approximately one year in 2013 to 2014, and since then have not lived at this address, have not used this address as my mailing address, and have not conducted any business at this address. In approximately 2014, | moved to Haiku, Hawaii. | currently reside in Haiku, Hawaii, and resided in Haiku at the time t hat service was allegedly made on me in this case. Additionally, | was not served with any documents on August 11, 2016, in connection with this case. mn 2. DECL. OF MICHAEL VILLA IN SUPPORT OF MOT. TO QUASH SERVICE OF SUMMONS WW 0 N O gO bh W N - N ND N N N N ND ND NM N N = =a aa cd cd w d o d w d ed WW N N oO Og bh W N A O W O N O D A W N A o | declare under penalty of perjury and under the laws of the State of California that the foregoing is true and correct. Executed a/ s/ 16 , at Haiku, Hawaii, [2 Michael Villa J 3. DECL. OF MICHAEL VILLA IN SUPPORT OF MOT. TO QUASH SERVICE OF SUMMONS © 0 J Oa nm BA W N = N N N N N N N N N mm mm e m e m e m e m e m p m p m co J aN nm kA W I N D = D O O N N N R E W I N D = Oo PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 years and not a party to the within action; my business address is 20042 Beach Boulevard, Suite 100, Huntington Beach, California 92648. On October 5, 2016, I served the foregoing documents described as * PLAINTIFF SHERIDAN OBERBECK OPPOSITION TO DEFENDANT MICHAEL VILLA’S MOTION TO QUASH SERVICE OF SUMMONS * DECLARATION OF BILL GONZALEZ on the interested parties in this action by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope addressed as stated below or on the attached Service List. [X] BY US.MAIL TO: Michael Maguire & Associates Attn.: Laura L. Davidson 611 Anton Blvd., Ste. 900 Costa Mesa, CA 92626 [X] I deposited such envelopes in the mail at Huntington Beach, California. [X] I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 5, 2016 at Huntington Beach, California. Yo luigplczt JOSH ULLRICH 1 PROOF OF SERVICE