RONALD LEWIS

1379 NORTH PALM AVENUE

FRESNO CA 93728
559-270-3060

Specially Appearing Defendant, In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

IN & FOR THE COUNTY OF FRESNO

CELSO RAMIREZ, ) Case No. 16 CE CL 08894

)
Plaintiff, )
)
vs. ) DATE: December 5, 2016
) TIME: 8:30 a.m.
RONALD LEWIS, et al., ) DEPT: 401
)
Defendants.

TO THE HONORABLE COURT PRESIDING IN DEPARTMENT 401 OF THE

SUPERIOR COURT, PLAINTIFF, CELSO RAMIREZ, AND THEIR ATTORNEYS OF

RECORD, IF APPLICABLE:

PLEASE TAKE NOTICE that on DECEMBER 5, 2016, at 8:30 A.M., or as soon after that as

the matter can be heard, in Department 401 of the above-entitled court located at 1130 "O" Street,

Fresno, CA 93724, specially appearing defendant, as will appear specially and move the Court for an

order quashing plaintiff’s purported service of summons and complaint on defendant. This motion is

made on the grounds that the summons and complaint were not properly served on defendant in that

Defendant Ronald Lewis was never served with the 3-day notice to pay or quit, that the 3-day notice

to pay or quit filed with the Summons and Complaint is defective because it does not correctly set

forth the correct amount of rent, if any, which would be due by way of adjustments for Section 8

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funds received, and that the Complaint is fundamentally defective as it was filed in Fresno directing

defendants to the wrong venue: Madera County, California. Therefore the purported service on

Defendant was not valid and should be quashed.

This motion will be based on this notice of motion, the memorandum of points and

authorities; the Declaration of Ronald Lewis, the pleadings, documents, records and files in this

action, and such oral and documentary evidence as may be presented at the hearing.

Dated: November 19, 2016 ______________________________________

Specially Appearing Defendant

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 MEMORANDUM OF POINTS AND AUTHORITIES

I.

STATEMENT OF FACTS

On November 4, 2016, Plaintiff, (“Plaintiff”) filed their complaint against the defendant

Alex Lewis, roommate and brother of defendant Ronald Lewis. Ronald Lewis has lived at the

residence from approximately 2012 to present under a year to year lease agreement with Jesus

Ramirez and/or Celso Ramirez. Ronald Lewis stayed on at the residence per agreement with plaintiff

and/or his representative, when Defendant Alex Lewis moved out of the residence in October 2016,

The summons filed by Plaintiff shows that Defendant was NOT personally served with the 3-

day notice to pay or quit, that plaintiff did not attempt to personally serve the 3-day notice before

allegedly posting it, and that the section requiring memorialization of those 2-attempts at service is

not completed as required on the 3-day notice. Most pointedly, defendant denies being served by any

means with the 3-day notice to pay or quit and alleges that he had no knowledge of the summons and

complaint, nor that anyone was attempting to serve pursue an unlawful detainer until service of the

Complaint wherein a 3-day notice to pay or quit was attached and Ronald Lewis observed it.

The service of the Complaint as well is defective, as it directs defendant to Madera County,

and it the belief of defendant that this is a retaliatory eviction, wherein plaintiff is attempting to

misdirect defendant Ronald Lewis as to venue. Mr. Lewis has requested repeatedly that the

property owners/managers make repairs to the property, clean the hygeine problems around the

property, and perform simple maintenance on the residence, all of which affect habitability of the

residence. That plaintiff is attempting to make it particularly difficult for defendant Ronald Lewis as

evidence by demanding that he must appear in person at a location in Madera County to pay rent.

Defendant Ronald Lewis is 67-years old, has difficulty walking due to documented and bona fide

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disability, and that rent paid personally by Ronald Lewis and/or Alex Lewis has never been paid in

Madera -- all of which is known to plaintiff.

Defendant contends that the service on him was improper and the Court should quash the

purported service on him.

II.

LEGAL ARGUMENT

A. THE PURPORTED SERVICE OF THE SUMMONS AND COMPLAINT IS

NOT VALID AND SHOULD BE QUASHED

Code of Civil Procedure § 418.10 states in part:

“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”.

Code of Civil Procedure § 415.10 states in part:

“A summons may be served by personal delivery of a copy of the summons and of the

complaint to the person to be served. Service of a summons in this manner is deemed complete at the

time of such delivery.”

The service of 3-day notice to pay or quit (or other time periods) is a condition precendent to

filing a valid Complaint, and is addressed in the form Complaint; a Complaint verified by Celso

Ramirez and filed in this case, in item 7, wherein it is alleged that no "suitable" person could be

found to personally serve the 3-day notice. Defendant Ronald Lewis was at home on October 20,

2016, only left the residence between 6:00 a.m. and 6:30 a.m., was awake from 4:15 a.m. to

approximately 9:45 pm that evening, and there were other people presesnt in the residence during

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those times. At no time did anyone attempt to serve a 3-day notice to pay or quit, as alleged by

plaintiff. Further, there was none posted as alleged by plaintiff. Defendant Ronald Lewis cannot

address whether or not he was present at the requisite prior alleged attempts at service, although it is

likely he was home due to his mobility issues and he has a habit and custom of staying at home

during the day time, with one 30-minute or so jaunt to the local market in the early evening. Plaintiff

alleges there were two previous attempts at personal service prior to the 10/20/16, but fails to

document the alleged attempts in the 3-day notice or any other documents available to defendant.

This type of cisircumvention of the rules by plaintiff does not constitute valid service and should be

quashed, as a substantive element directly affecting the propriety of the alleged service is absent, and

simply does not fulfill the demands of due process and fundamental fairness required by the law.

And the fact that Defendant received the summons and complaint does not preclude a motion

to quash due to the fact that Plaintiff did not serve the summons and complaint in a statutorily

authorized manner.

Even when the defendant tenants (and/or subtenants) actually received summons and

complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was

not served in a statutorily-authorized manner. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52 Cal.

App. 3d 737, 741.

B. THE PLAINTIFF HAS THE BURDEN OF SHOWING THAT THE

PURPORTED SERVICE OF THE SUMMONS AND COMPLAINT ON

DEFENDANT IS VALID

Case law is clear that once a defendant files a motion to quash service that the plaintiff has the

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

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

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

And a defendant is under no duty to respond to a defectively served summons and may stand

mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court.

Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.

Thus, Plaintiff now has the burden of showing that the purported service of the summons and

complaint on Defendant Alex Lewis is valid.

III.

CONCLUSION

Based on the above, it is requested that defendant’s motion to quash service of the summons

and complaint be granted.

Dated: November 19, 2016

______________________________________
Ronald Lewis, Specially Appearing Defendant

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 DECLARATION OF RONALD LEWIS

I, RONALD LEWIS, declare as follows.

1. I am over the age of 18 years and am a party to this action. I have personal

knowledge of the facts stated in this declaration, and if called as a witness, could and would testify

competently to the truth of the facts as stated herein.

2. The summons filed by Plaintiff shows that I was NOT personally served. I

was never served with a 3-day notice to pay or quit for Plaintiffs lawsuit. I would have

immediately cured any alleged defect in rent had I received the 3-day notice as required by

law. That based upon information and belief, my due process rights have been violated by plaintiff as

a result, and I believe I am being retaliated against due to my requests that garbage strewn about the

property (including open, used toilet) be properly cleansed by management, that repairs to the floor

be made so I don't fall through (I alreadly have difficulty walking due to balance issues), and many

other reasonable requests, most of which have fallen on the deaf ears of management /plaintiff herein;

3. At no time was personal service on defendant for the 3-day notice ever

attempted by Plaintiffs;

4. I was not intentionally trying to avoid service as I had no knowledge that

anyone was attempting to serve me and at all times I could have been reached for personal

service at my residence;

5. That I have never traveled to Madera to pay rent, and the plaintiff knows me

well, as I have lived at the residence at least 4-years or so, and have always faithfully met my rental

obligations;

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 6. That the attempts to send me to Madera for payment and/or that the venue for

the matter is Madera, according to the Complaint is an attempt by my landlord to

make it as difficult as possible for me to meet the requirements of fulfilling the duties

of a defendant in an unlawful detainer.

I respectfully request that the Court grant my motion to quash service of the

summons and complaint.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct and that this Declaration was executed on November Nineteenth (19th,)

the year twenty-sixteen (2016) at Fresno, California.

__________________________________________
RONALD LEWIS, Affiant

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66

PROOF OF SERVICE

I am over the age of 18 and not a party to this action.

I am a resident of or employed in the county where the mailing occurred; my

business/residence address is: 1473 North Wishon Avenue
,MC8

On 11/21/2016, I served the foregoing document(s) described as:

NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND

COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF
DEFENDANT RONALD LEWIS

to the following parties:

Celso Ramirez
200 North K Street, #1
Madera, CA 93637

[ X ] (By U.S. Mail) I deposited such envelope in the mail at with postage thereon
fully prepaid. 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.

[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
service to the address above;

[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours
to the number(s) listed above. Said transmission was reported complete and without
error.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

DATED: November 21, 2016

____________________________________
Colin Kooyumjian

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