Judge Elaine W. Mandel, Case Number: 23SMCV04276, Date: 2025-01-14 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV04276, Date: 2025-01-14 Tentative Ruling

Case Number: 23SMCV04276 Hearing Date: January 14, 2025 Dept: P

Tentative Ruling

Censor Commercial Construction v. Ubsoma, Case no. 23SMCV04276

Hearing date January 14, 2025

Third-Party Nazarian’s Motion to Set Aside Bench Warrant and Quash Orders for Examination

Plaintiff Censor Commercial Construction, LLC sued defendants Ubsoma, LLC and UB-WP 60622, LLC for breach of contract, quantum meruit, common counts and open books arising from defendants’ alleged failure to pay for construction of two restaurant locations. Default judgment was entered against defendants 3/1/24. Plaintiff applied 9/13/24 for appearance and examination orders against third-party Sam Nazarian, alleged manager of defendants. The orders were granted 9/16/24, and Nazarian was ordered to appear 10/25/24. Nazarian did not appear, and the court continued the hearing to 1/15/25 and issued and held a bench warrant until that date. Min. Order 10/25/24.

Nazarian moves to set aside the bench warrant, quash the orders for examination and appearance, and requests $19,642.50 in sanctions, arguing Nazarian is not the manager of judgment debtors and the orders for examination were not properly served.

“A person sought to be examined may not be required to attend an examination before a court located outside the county in which the person resides or has a place of business unless the distance from the person’s place of residence or place of business to the place of examination is less than 150 miles.” Cal. Code Civ. Proc., §708.160. Cal. Rules of Court 3.221(f) holds that if a “person ordered to appear denies service of the order for appearance, the court shall conduct a hearing solely to determine if proper service was made.

The court may continue the examination to permit any person to present evidence in support or in opposition to the claim of non-service. If the court determines service was not made, it may dismiss the proceeding without costs awarded to the applicant.” Cal. Code Civ. Proc. §473(b) allows the Court “upon any terms as may be just, [to] relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” When a person challenges the court’s jurisdiction on the ground of improper service, “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” Dill v. Berquist Constr. Co. (1994) 24 Cal.App.4th 1426, 1441-42.

Nazarian argues he neither resides in nor has a place of business in California so cannot be ordered to appear before the court under Cal. Code Civ. Proc., §708.160. Decl. Nazarian 3. Nazarian offers a heavily-redacted Florida drivers license. Decl. Nazarian exh. A. The license demonstrates Nazarian at one point possessed a Florida driver's license; it does not include an expiration date, issuance date nor current address that demonstrates Nazarian’s current residency, nor does it defeat allegations that Nazarian has a place of business in California.

Plaintiff argues Nazarian maintains a place of business in California, supported by the declaration of counsel Mendez to show Nazarian’s company SBE Eats, LLC, maintains a business address at 9247 Alden Drive, Beverly Hills, CA 90210-3703. Decl. Mendez para. 11; exh. F. Plaintiff argues Nazarian operates 13 other businesses out of the same address, thus availing himself of jurisdiction in California and rendering him subject to examination under Cal. Code Civ. Proc., §708.160. Decl. Mendez para. 25; exh. P.; Cal. Code Civ. Proc., §708.160

merely requires a place of business; plaintiff demonstrated Nazarian maintains such within Los Angeles County, so he may be compelled to attend examinations in Los Angeles County.

Nazarian also argues he was not served with the 9/16/24 orders. Nazarian declares lives in Florida and does not own or live at the address where substituted service occurred in Los Angeles. Decl. Nazarian paras. 3-4. Nazarian argues the address of substituted service is his mother’s home, and he has not authorized his mother or her agents to accept service on his behalf. Decl. Nazarian para. 5. Nazarian’s declaration is sufficient to shift the burden to plaintiff to demonstrate service was proper.

Plaintiff argues Nazarian demonstrates actual notice by the filing this motion. Plaintiff argues it initially served a housekeeper 9/16/24 at 157 Delfern Dr., Los Angeles, CA 90077-3542, alleged as Nazarian’s property. Decl. Mendez para. 13. Plaintiff asserts the housekeeper implied Nazarian resided at the property and would return to the county. Id. Plaintiff subsequently served Nazarian’s mother and the housekeeper again 11/1/24. Decl. Mendez para. 17; exh. I.

Per Cal. Code Civ. Proc. §415.20(b) if service cannot be personally delivered then service can be effected by “leaving a copy… in the presence of a competent member of the household.” Nazarian’s argument that he did not authorize his mother to receive service is unavailing; competent family members need not be authorized. Further, the instant motion demonstrates Nazarian and judgment debtors received actual notice. Nazarian’s arguments that plaintiff did not directly serve judgment debtors are unavailing; neither Ubsoma nor UB-WP have agents for service. Decl. Mendez para. 12.

Nazarian raises numerous arguments under Cal. Code Civ. Proc., §708.160 and related case law that he cannot be compelled to attend a hearing thousands of miles from his alleged residence. Plaintiff offered evidence that Nazarian is in residence in Los Angeles County at least occasionally, undercutting such arguments. Decl. Mendez para. 13. Of greater relevance is court technology allowing for remote attendance. If the burden of distance is too great, the court can make alternatives available that will allow for Nazarian and his counsel’s remote virtual attendance.

Nazarian requests $19,642.50 for 29.1 hours for attorney’s fees under the Civil Discovery Act, Cal. Code Civ. Proc. §708.170(b), and Cal. Code Civ. Proc. §473(c). The Civil Discovery Act covers §§2016-2061 of the Cal. Code Civ. Proc.; the court’s orders regarding Nazarian were made under §§491.110, 708.110, 708.120, 708.150, and 708.170. The Civil Discovery Act is inapplicable. Cal. Code Civ. Proc. §708.170(b) is not applicable because an arrest is required under the plain text of the statute. Cal. Code Civ. Proc. §473(c), is also inapplicable because Code Civ. Proc. §473(c)(1), states, “Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following”. Even if the court was inclined to grant the instant motion it would not be granting relief from a default, default judgment nor a dismissal. No sanctions will be awarded.

Plaintiff demonstrated service was reasonably effected on Nazarian and Nazarian’s testimony is necessary. Decl. Mendez para. 11; exh. F. The court can exercise jurisdiction over Nazarian. Nazarian may avail himself of the court’s technological resources if traveling to attend hearings and examinations is beyond his means. DENIED.