1 Cary Goldberg

Erica Goldberg
2 6857 Sperryville Lane
Moorpark, CA 93021
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818-519-2100
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Specially Appearing Defendants, In Pro Per
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Superior Court of the State of California
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For the County of Ventura
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Daniel Montgomery and Jennifer Montgomery, ) Case No. 56-2011-00394464-CL-UD-SIM
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Plaintiff, ) NOTICE OF MOTION AND MOTION TO QUASH
13 ) SERVICE; MEMORANDUM OF POINTS AND
vs. ) AUTHORITIES; DECLARATION OF CARY
14 ) GOLDBERG
Cary Goldberg, Erica Goldberg , and DOES 1-10 )
15 ) DATE: April 27, 2011
Defendants. ) TIME: 2:00 PM
16 ) DEPT: __
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1TO PLAINTIFF, DANIEL AND JENNIFER MONTGOMERY AND THEIR ATTORNEYS OF
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21 RECORD:

22 PLEASE TAKE NOTICE that on April 27, 2011 at 2:00 PM., or as soon after that as the
23 matter can be heard, in Department ______ of the above-entitled court located at: 3855-F Alamo
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Street, Simi Valley, CA 93063, specially appearing defendants, Cary Goldberg & Erica Goldberg,
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will appear specially and move the Court for an order quashing plaintiff’s service of summons and
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complaint on defendants. This motion is made under Section 418.10 of the Code of Civil Procedure

28 on the grounds that the 3 Day Notice and subsequent summons and complaint were not properly

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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 served on defendants in that Defendant, Cary Goldberg was served with a 3 Day Notice to Pay Rent
2 or Quit prior to the rent becoming delinquent and therefore service was defective, and the summons
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and complaint, which was subsequently served on defendants was therefore not valid and should be
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quashed.
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This motion will be based on this notice of motion, the memorandum of points and

7 authorities; the Declaration of Cary Goldberg, the pleadings, documents, records and files in this

8 action, and such oral and documentary evidence as may be presented at the hearing.
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10 Dated: April 18, 2011 __________________________________________

Specially Appearing Defendant, Cary Goldberg
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__________________________________________
13 Specially Appearing Defendant, Erica Goldberg

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27 MEMORANDUM OF POINTS AND AUTHORITIES

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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 I.
2 STATEMENT OF FACTS
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On April 2, 2011, Jennifer Montgomery, (“Plaintiff”) personally served a 3 Day Notice to Pay
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Rent or Quit on the specially appearing Defendant, Cary Goldberg, (“Defendant”).
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The proof of service filed by Plaintiff confirms that Defendant was personally served this

7 notice on April 2, 2011.

8 On April 11, 2011, Erica Goldberg, (“Defendant”) was personally served with a Summons
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and Complaint for Unlawful Detainer.
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On April 12, 2011, Cary Goldberg, (“Defendant”) was personally served with a Summons and
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Complaint for Unlawful Detainer.
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13 Defendants contend that because the Plaintiff did not follow the proper California Code of

14 Civil Procedure the service of Summons was improper and the Court must quash the service.
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II.
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LEGAL ARGUMENT
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A. THE SERVICE OF THE SUMMONS AND COMPLAINT IS NOT VALID
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19 AND SHOULD BE QUASHED

20 Code of Civil Procedure § 418.10 states in part:

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“A defendant, on or before the last day of his or her time to plead or within any further time
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that the court may for good cause allow, may serve and file a notice of motion for one or more of the
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following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the
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25 court over him or her”.

26 Code of Civil Procedure § 1161 (2) requires that rent must be in default before a 3 Day
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Notice to Pay Rent is served upon the tenant.
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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 Courts have held that a properly issued 3 Day Notice is a condition precedent to the Landlord
2 having the right to file an eviction.
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Before a landlord may file and serve a Summons and Complaint on a tenant they must first
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5 properly serve the tenant with a 3 Day Notice to Pay Rent or Quit. Only after the expiration of this

6 notice can a landlord initiate a complaint against the tenant. This 3 Day Notice must not be served
7 until after the stated amount of rent becomes due.
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9 Rent becomes delinquent;

10 a) the day following the due date, when the rental or lease agreement does not provide for a
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grace period; or
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b) the day following the last calendar day of the grace period established in the rental or lease
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agreement.
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15 That means that if the lease agreement states that the rent is due on the first day of the month,

16 the 3 Day Notice cannot be served until the second day of the month at the earliest. If, however, the
17 second day of the month falls on a weekend or holiday, then the tenant has until the next business day
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to pay the rent without being considered late. [CCP §§10, 12A]
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In this case, April 2nd, 2011 fell on a Saturday, and therefore the Defendant was not delinquent
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with their rent at the time the 3 Day Notice was served by Plaintiff, and it is therefore defective and

22 invalid. If the required 3 Day Notice is invalid then the resulting service of a Summons and
23 Complaint upon the Defendant must also be invalid.
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As shown by the Plaintiff’s Exhibit # 3 to the complaint, the Plaintiff, freely acknowledges
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that the 3 Day Notice was served upon Defendant on Saturday April 2, 2011, several days prior to the
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Defendant being delinquent on their rent. Therefore the service was premature and defective.
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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 Further, when the rental agreement allows for a “Grace Period” (a certain number of days
2 after the rent “due date”) before late charges will begin to accrue, (as this rental agreement does) the
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contract rent does not become “delinquent” (in default) until the grace period expires; in turn, a three
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day non-payment of rent notice would be premature if served before the expiration of the grace
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period. [See Baypoint Mortg. Corp. v. Crest Premium Real Estate Investments Retirement Trust

7 (1985) 168 CA3d 818, 826–827, 214 CR 531, 536–537—mortgage loan documents stating monthly

8 installments were “payable” on first of the month but also stating late fees would not be chargeable
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unless payment not received on or before 10th of the month, construed to mean payment made after
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the “due date” was timely, thus preventing foreclosure, so long as made by the 10th].
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In this case the rental agreement calls for a 5 day Grace Period [see Rental Agreement;
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13 Section 6, Sub Section A] Therefore, the rent would not be considered delinquent until after April 5,

14 2011, and then and only then would service of a 3 Day Notice to Pay Rent or Quit be proper.
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Therefore, the Plaintiff serving the Defendant with a 3 Day Notice on April 2, 2011 did not
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constitute valid service and so the Summons and Complaint did not follow the California Code of
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Civil Procedure requiring the expiration of a valid 3 Day Notice before filing a complaint and is
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19 therefore premature, defective and must be quashed.

20 The fact that Defendant received the summons and complaint does not preclude a motion to
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quash due to the fact that Plaintiff did not serve the summons and complaint in a statutorily
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authorized manner.
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Even when the defendant tenants (and/or subtenants) actually received summons and
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25 complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was

26 not served in a statutorily-authorized manner. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52 Cal.
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App. 3d 737, 741.
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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 B. THE PLAINTIFF HAS THE BURDEN OF SHOWING THAT THE SERVICE
2 OF THE SUMMONS AND COMPLAINT ON DEFENDANT IS VALID
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Case law is clear that once a defendant files a motion to quash service that the plaintiff has the
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burden of proving that the service was valid.
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Once a defendant files a motion to quash the burden is on the plaintiff to prove by a

7 preponderance of the evidence the validity of the service and the court's jurisdiction over the

8 defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.

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And a defendant is under no duty to respond to a defectively served summons and may stand
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mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court.
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Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.
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13 Thus, Plaintiff now has the burden of showing that the service of the summons and complaint

14 on Defendants Cary & Erica Goldberg is valid.

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III.
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CONCLUSION
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Based on the above, it is requested that defendant’s motion to quash service of the summons
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19 and complaint be granted.

20 Dated: ________________ __________________________________________

Specially Appearing Defendant
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22 __________________________________________
Specially Appearing Defendant
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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 DECLARATION OF CARY GOLDBERG
2 I, Cary Goldberg, declare as follows.
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1. I am over the age of 18 years and am a party to this action. I have personal
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knowledge of the facts stated in this declaration, and if called as a witness, could and would testify
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competently to the truth of the facts as stated herein.

7 2. I was personally served with a 3 Day Notice to Pay Rent or Quit on Saturday April 2,

8 2011 by Jennifer Montgomery (Plaintiff) prior to the rent being delinquent.

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3. I respectfully request that the Court grant my motion to quash service of the
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summons and complaint because it was served without a proper notice of eviction which is
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prerequisite to filing a complaint.
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13 I declare under penalty of perjury under the laws of the State of California that the foregoing

14 is true and correct and that this Declaration was executed on April 18, 2011 at Ventura, California.
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16 __________________________________________
Cary Goldberg
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NOTICE OF MOTION AND MOTION TO QUASH SERVICE
 1 PROOF OF SERVICE
2 I am over the age of 18 and not a party to this action.
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I am a resident of or employed in the county where the mailing occurred; my
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business/residence address is: 888 E Thousand Oaks Blvd, Thousand Oaks, CA 91360.
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On April 18, 2011, I served the foregoing document(s) described as:

7 NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND

COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF
8 CARY GOLDBERG to the following parties:
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Richard A. Rodgers
10 Shane, Digiuseppe & Rodgers LLP
200 N. Westlake Blvd.
11 Westlake Village, CA 91362
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13 [X ] (By U.S. Mail) I deposited such envelope in the mail at Thousand Oaks with postage
thereon fully prepaid. I am aware that on motion of the party served, service is
14 presumed invalid if postal cancellation date or postage meter date is more than one
day after date of deposit for mailing in affidavit.
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16 [ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
service to the address above;
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[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours
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to the number(s) listed above. Said transmission was reported complete and without
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20 I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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23 DATED: April 18, 2011

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____________________________________
25 Craig Jacob

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NOTICE OF MOTION AND MOTION TO QUASH SERVICE