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Ashishkumar Patel, SBN 207293 LAW OFFICE OF ASHISHKUMAR PATEL, APC 2102 Business Center Drive, Suite 130 Irvine, CA 92612 Tel: (949) 253-4192 Fax: (949) 253-4193 Attorney for Defendant(s)

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE MORENO VALLEY COURTHOUSE

) ) ) Plaintiff, ) ) vs. ) ) ) PAUL BARTRAM; LISA BARTRAM, et al., ) ) ) ) Defendants(s) ) ) OSCAR FONSECA

CASE NO. MVC1104469 LIMITED CIVIL CASE NOTICE OF MOTION AND MOTION FOR HEARING FOR AN ORDER TO QUASH SERVICE OF SUMMONS DUE TO DEFECTIVE SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF PAUL BARTRAM AND LISA BARTRAM

TO PLAINTIFF OSCAR FONSECA, HIS COUNSEL OF RECORD AND TO ALL OTHER INTERESTED PARTIES: NOTICE IS HEREBY GIVEN that on August 29, 2011, at 1:30 pm, or as soon thereafter as the matter can be heard Department S103 of the above-entitled Court, located at 13800 Heacock Avenue, Building D201, Moreno Valley, CA 92553. Defendants Paul Bartram (Paul Bartram or Defendant) and (Lisa Bartram or Defendant), will specially appear in this action a move this Court for an order quashing service of summons, pursuant to Code of Civil Procedure 418.10(a)(1), on the grounds that plaintiff Oscar Fonseca (Plaintiff) has failed to obtain jurisdiction over Bartram in that the purported service upon Bartram was defective. This motion is based on this Notice, the records and papers on file herein, the attached

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memorandum of Points and Authorities, Declaration of Paul Bartram and Lisa Bartram, and on such other evidence as ma be presented at the hearing of this matter.

August 19th, 2011

Law Office of Ashishkumar Patel ___________________________ Ashishkumar Patel Attorney For Defendant(s) Paul Bartram and Lisa Bartram

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MEMORANDUM OF POINTS AND AUTHORITIES SUBMITTED IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS 1. STATEMENT OF FACTS Defendant Paul Bartram and Lisa Bartram (Bartram or Defendant) was [and alleges that he still is] the owner of the real property commonly known as 400 West *th Street, Perris, California 92570 (Premises) Bartram claims that he was sold an unjust mortgage that he did not understand as his English reading, speaking, and writing abilities are very poor, and that plaintiff Oscar Fonseca improperly foreclosed upon the Premises without giving him proper notice. Bartram also claims that he nor anyone else at the Premises were ever served with a copy of the summons and complaint and that the process server lied on the proof of service of summons, as there was never any John Doe male Hispanic who was 35 years old, 56 tall and 180 pounds at the Premises on March 18, 2011. Since the process server never served anyone at the Premises, this Court did not obtain jurisdiction over Bartram and the service of summons should be quashed due to ineffective service.
2.

STATEMENT OF LAW California Code of Civil Procedure 418.10 states in pertinent part: (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: (1) To quash service of summons on the ground of lack of jurisdiction of the Court over him or her. 3. ARGUMENTS A) A Defendant May Challenge Service By Specially Appearing In A Motion To Quash

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If a defendant claims defects in service and lack of jurisdiction, he must do so by special appearance in a motion to quash, which is strictly limited to the issue of jurisdiction. Nelson v. Horvath (1970) 4 Cal.App.3d 1,4. The authority for bringing a motion to quash is set forth in Code of Civil Procedure section 418.10, which provides: 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. (a)

In this case, plaintiff Oscar Fonsecas (Plaintiff) process server never either personally served or sub-served anyone at the Premises on March 18, 2011, as there was no one at the Premise on March 18, 2011 who matches the John Doe description as stated on the proof of service of summons. (See Declaration of Paul Bartram and Lisa Bartram 5-7, which is incorporated herein by reference.) Therefore, this Court does not acquire jurisdiction where personal service is asserted but did not take place. Kappel v. Bartlett (1998) 200 Cal.App.3d 1457, 1466-1467. As, such this Court did not acquire jurisdiction over Bartram and it should issue an order quashing any defective service of summons. B) The Burden Is On The Plaintiff To Prove That The Service Of Summons Is Valid Once a motion to quash is filed, the burden is on the plaintiff to prove by a preponderance of evidence that the service is valid and the court has jurisdiction over the person. Until there is an evidentiary hearing, the plaintiff must make a prima facie showing. Bolkiah v. Superior Court (1997) 74 Cal.App>4th 984, 991. The defendant need not respond to a defective service and may wait until plaintiff makes a prima facie showing to the court. Bolkiah v. Superior Court, supra at pp. 991-992.

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The burden of showing jurisdiction must be met by competent evidence n affidavits and authenticated documentary evidence; an unverified complaint will not suffice. Ziller v. electronics Lab GMBH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233. In a similar vein, defendant may submit his declaration showing that no such jurisdiction was acquired over him. Sammons Enterprises, Inc. v. Superior Court (1988) 205 Cal.App.3d 1427, 1434. (See declaration of Paul Bartram and Lisa Bartram, filed concurrently herewith and incorporated herein by reference.) Plaintiff cannot make this showing by arguing that Bartram has actual notice of these proceedings. Notice is not satisfied by actual knowledge without notification pursuant to statute; the methods of service are strictly construed. Kappel v. Bartlett, supra, at p. 1466. Mere knowledge of the action is not a substitute for service, nor does it raise any estoppels to contest the validity of the service. In re Abrams (1980) 108 Cal.App.3d 685, 693.

4. CONCLUSION Based on the foregoing, defendant Bartram respectfully submits that Plaintiffs purported service of summons is defective in that actual personal service or sub-service of Bartram did not take place, and therefore this Court should grant this motion to issue its order quashing service of summons of this moving party.

August 19, 2011

Law Office of Ashishkumar Patel

____________________________ Ashishkumar Patel Attorney For Defendant(s), Paul Bartram and Lisa Bartram

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Ashishkumar Patel, SBN 207293 LAW OFFICE OF ASHISHKUMAR PATEL, APC 2102 Business Center Drive, Suite 130 Irvine, CA 92612 Tel: (949) 253-4192 Fax: (949) 253-4193 Attorney for Defendant(s)

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE MORENO VALLEY COURTHOUSE

) ) ) Plaintiff, ) ) vs. ) ) ) PAUL BARTRAM; LISA BARTRAM, et al., ) ) ) ) Defendants(s) ) ) OSCAR FONSECA

CASE NO. MVC1104469 LIMITED CIVIL CASE DECLARATIONS OF PAUL BARTRAM AND LISA BARTRAM IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS

I Paul Bartram and Lisa Bartram Hereby declare: 1. I am a defendant in this lawsuit entitled Oscar Fonseca vs. Paul Bartram and Lisa

Bartram (Case No. MVC1104469). 2. If called as witness I would testify as follows:

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3.

I am the owner of the real property commonly known as: 400 west 8th street,

Perris, California 92570 (Premises) 4. Plaintiff wrongfully foreclosed upon my property as I was never given proper

notice of any foreclosure sale. Additionally, the loan sold to me for the property was a bad loan and the lender engaged in predatory lending with me as I did not understand what I was signing as my ability to read, write, and speak English is very poor and even this declaration has been orally translated for me. I am planning on suing the Plaintiff and others for wrongful foreclosure, fraud, and other causes of action. 5. lawsuit. 6. Nor was I ever served via substituted service as there was never any male I was never personally served with a copy of the summons and complaint for this

Hispanic man who was/is 56 tall, 180 pounds and with black hair at my Premises on March 18, 2011 at 6:20 p.m. or any other time that day. 7. 8. The process server lied about the service. I only found out about the default when some paperwork saying I was in default

came in the mail and I gave it to my attorney. I did not know what was going on since no one ever gave me any lawsuit paperwork. I even had to drive to the Court and pick up copies of the lawsuit from the Court. 9. I ask the Court to quash the service of summons and complaint, as I still need to

be properly served in this case. I declare under penalty of perjury of the laws of State of California that the foregoing is true and correct. Executed on August 19th, 2011 in Perris, California.

______________________________ Paul Bartram and Lisa Bartram

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Ashishkumar Patel, SBN 207293 LAW OFFICE OF ASHISHKUMAR PATEL, APC 2102 Business Center Drive, Suite 130 Irvine, CA 92612 Tel: (949) 253-4192 Fax: (949) 253-4193 Attorney for Defendant(s)

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE MORENO VALLEY COURTHOUSE

) ) ) Plaintiff, ) ) vs. ) ) ) PAUL BARTRAM; LISA BARTRAM, et al., ) ) ) ) Defendants(s) ) ) OSCAR FONSECA

CASE NO. MVC1104469 LIMITED CIVIL CASE NOTICE OF RULING ON DEFENDANTS MOTION TO QUASH

TO PLAINTIFF OSCAR FONSECA, ITS COUNSEL OF RECORD, AND TO ALL OTHER INTERESTED PARTIES:

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NOTICE IS HEREBY GIVEN that on Mary 3rd, 2011 at 1:30 p.m. in department S103 of the Superior Court of California, County of Riverside, Murrieta Courthouse defendant Paul Bartram and Lisa Bartrams Motion To Quash was heard. The honorable Ronald L. Grey Commissioner presided over the hearing. Palak Chopra of the Law Office of Palak Chopra, APC appeared on behalf of defendant and moving party Paul Bartram and Lisa Bartram A special appearance was made on behalf of Malcolm Cisneros, counsel for plaintiff Oscar Fonseca. After reviewing the moving paperwork and hearing oral arguments the Court rules as follows: Defendant Paul Bartram and Lisa Bartrams motion to quash service of summons is denied. Defendant shall have 5 days to file a response. Defendants counsel to give notice.

Dated: May 4, 2011

Law Office Ashishkumar Patel

__________________________________ Ashishkumar Patel Attorney For Defendant(s), Paul Bartram and Lisa Bartram

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