Judge: Christopher K. Lui, Case: 23STCV18111, Date: 2023-12-18 Tentative Ruling
Case Number: 23STCV18111 Hearing Date: December 18, 2023 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. Counsel must contact the staff
in Department 76 to inform the Court whether they wish to submit on the
tentative, or to argue the matter. As
required by Rule 3.1308(a), any party seeking oral argument must notify ALL
OTHER PARTIES and the staff of Department 76 of their intent to appear and
argue.
Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776.
Per Rule of Court 3.1308, if notice of intention
to appear is not given, the Court may adopt the tentative ruling as the final
ruling.
This is a commercial unlawful detainer action.
Defendant Romex Textiles, Inc. moves to quash service of summons.
TENTATIVE RULING
Defendant Romex Textiles, Inc.’s motion to quash is DENIED. Defendant Romex Textiles, Inc. is ordered to answer the Complaint within 5 days.
Plaintiff’s request for sanctions against attorney Nico Tabibi is DENIED.
ANALYSIS
Motion To Quash
Request For Judicial Notice
Plaintiff requests that the Court take judicial notice of the following:
1. The information set forth in the two most recent Statement of Information filings by Defendant Romex Textiles, Inc. (“Romex”) with the California Secretary of State, dated respectively, May 5, 2023 and October 3, 2021, available at https://bizfileonline.sos.ca.gov/search/business, indicating :
a. The principal address of Romex is 1430 Griffith Ave., Los Angeles, CA 90021.
b. Shawn Binafard is the Chief Executive Officer of Romex.
c. Nico Tabibi is the registered Agent for Service of Process of Romex, with an office address of 9454 Wilshire Blvd., Penthouse Level, Beverly Hills, CA 90212.
2. Nico Tabibi is a licensed attorney in California, SBN 169036, per the State Bar of California available at https://apps.calbar.ca.gov/attorney/Licensee/Detail/169036 with a street address the same as indicated on Exhibit A hereto, with an email address of nico@tabibilaw.com.
3. Nico Tabibi also appeared as counsel for Romex in a prior, 2022 unlawful detainer proceeding in the Los Angeles Superior Court between the same two parties as in this action, HE&E Triggs LLC vs. Romex Textiles, Inc., Case No. 22STCV34602 (filed 10/31/2022), and registered his email with the court, in both that proceeding and this proceeding, as nico@tabibilaw.com.
4. The Proof of Service of Summons, filed by plaintiff herein on August 11, 2023, a conformed copy of which is Exhibit B hereto (relating to personal service of Shawn Binafard, the CEO of Romex, by Cathy Diaz on August 7, 2023).
5. The Proof of Service of Summons, filed by plaintiff herein on September 18, 2023, a conformed copy of which is Exhibit C hereto (relating to substitute service on Romex, Ediberto Valle Nava, on August 23, 2023).
6. The “Declaration of Ediberto Valley Nava re Due Diligence for Substitute Service,” filed by plaintiff herein on September 18, 2023, a conformed copy of which is Exhibit D hereto (also relating to the due diligence of Mr. Nava in connection with the substitute service on August 23, 2023).
Request No. 1 is GRANTED. The Court may take judicial notice of a business entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.)
Request No.2 is GRANTED. The Court may take judicial notice of the State Bar records set forth on the California State Bar web site. (People v. Vigil (2008) 169 Cal.App.4th 8, 12 n.2.)
Requests Nos. 3 - 6 are GRANTED per Evid. Code, § 452(d)(court records).
Discussion
Defendant Romex Textiles, Inc. moves to quash service of summons and set aside default.
On a motion to quash for lack of
personal jurisdiction, the plaintiff has
the initial burden of proof:
“When a defendant moves to quash
service of process” for lack of specific jurisdiction, “the plaintiff has the
initial burden of demonstrating facts justifying the exercise of jurisdiction.”
( Vons, supra, 14 Cal.4th at p. 449.) “If the plaintiff meets this initial
burden, then the defendant has the burden of demonstrating ‘that the exercise
of jurisdiction would be unreasonable.’ ” ( Pavlovich, supra, 29 Cal.4th at p.
273, quoting Vons, at p. 449.)
(Snowney v. Harrah's Entertainment, Inc.
(2005) 35 Cal.4th 1054, 1062 [bold emphasis added].)
In an unlawful detainer action, written opposition to a motion to quash may be filed and served on or before the court day before the hearing. (Cal. Rules of Court, Rule 3.1327(c). Here, the Opposition was filed and electronically served on December 13, 2023, relative to the December 18, 2023 hearing date.
Shahab Binafard, President and Chief Executive Officer of specially-appearing Defendant Romex Textiles, Inc. states that a woman threw papers at his head on August 7, 2023 while he was walking toward his car, that she shouted names, and that he threw the package back at her. (Binafard Decl., ¶¶ 4, 5.) He contends that he has not received the summons and complaint at his office or home address. (Id. at ¶ 8.)
Unfortunately for Defendant, the fact that he grasped the papers to throw back at the woman constitutes personal service upon him on behalf of Defendant Romex Textiles, Inc. Were it otherwise, no one could be personally served if all they had to do was throw the papers back at the process server or discard the papers. Moreover, Binafard’s sworn statements in his declaration do not appear to be consistent with the video recording Plaintiff has submitted in opposition to the motion.
In any event, on August 23, 2023, Defendant Romex Textiles, Inc. was served via substituted service at 1430 Griffith Avenue, Los Angeles, CA 90021 on August 23, 2023, effective on September 2, 2023 (10 days after mailing—Civ. Proc. Code, § 415.20(a)). (RJN, Exhs. C [Proof of Service] and D [Declaration of Ediberto Valle Nava Re Due Diligence For Substituted Service].) As such, Defendant Romex Textiles, Inc. was properly served at the latest on September 2, 2023.
As such, the motion to quash is DENIED. Defendant Romex Textiles, Inc. is ordered to answer the Complaint within 5 days.
Plaintiff’s request for sanctions against attorney Nico Tabibi is DENIED.