Judge: Gregory Keosian, Case: BC678400, Date: 2023-02-14 Tentative Ruling

Case Number: BC678400    Hearing Date: February 14, 2023    Dept: 61

Defendants and Cross-Complainants Faryan and Leila Afifi’s Motion to Compel Inspection of Property of Plaintiff USC Investments, LLC is DENIED.

Cross-Complainants to give notice.

I.                   MOTION TO COMPEL

A propounding party may demand a responding party to produce documents or to inspect properties that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §2031.300.)

A party who fails to serve a timely response to a demand for inspection waives any objection to the demand. (Code Civ. Proc., §2031.300.)

Defendants and Cross-Complainants Faryan and Leila Afifi move to compel Plaintiff and Cross-Defendants USC Investments and Patricia Hartunian to permit inspection of their property, pursuant to a demand personally served upon their counsel on December 23, 2022. (Afifi Decl. ¶ 2.) However, in subsequent correspondence, USCI and Hartunian’s counsel denied receiving the notice, claiming that the office was closed on December 23, . (Afifi Decl. Exh. 3.)

The Afifis argue that service was accomplished upon Plaintiff’s counsel within the meaning of Code of Civil Procedure § 1011. “If upon an attorney, service may be made at the attorney's office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person having charge thereof.” (Code Civ. Proc. § 1011, subd. (a).) If no receptionist or person having charge thereof is present in the office to receive the papers, then “service may be made by leaving them between the hours of 9 a.m. and 5 p.m., in a conspicuous place in the office.” (Ibid.)

The Afifis cite subsequent email correspondence with Plaintiff’s counsel, who stated that, per review of video surveillance of the firm’s building, and interviews with the guards in question, the server of the inspection demand entered the building on December 23^rd, when the firm’s office was closed, and was stopped by lobby guards, who denied him access to the closed office. (Afifi Decl. Exh. 3.) The documents were left with the guard desk, which were later thrown away by janitorial staff. (Ibid.) The fact that the documents were left with the building security guard is confirmed by the declaration of service provided by the server. (Afifi Decl. Exh. 2.) The Afifis thus argue that, though the offices of Plaintiff’s counsel were closed for the Christmas holiday, the papers were delivered during normal business hours to the building guards, people having “charge” of the attorney’s office under Code of Civil Procedure § 1011, subd. (a). (Motion at pp. 5–6.)

Service was not accomplished under Code of Civil Procedure § 1011, because, per the proof of service of the inspection demand, the office of Plaintiff’s counsel occupies but one suite of a larger building, and said office was closed when service was attempted. (Afifi Decl. Exhs. 1, 2.) Leaving the papers with the building guard or in the building lobby is not the same as leaving them in the attorney's office, as specified in Code of Civil Procedure § 1011. Although the Afifis argue that it was the fault of Plaintiff’s counsel for failing to keep their offices open during an ordinary workday, Code of Civil Procedure § 1011 does not require attorneys to keep their offices open during particular hours, and in fact provides additional options for service in the event the attorney’s office is closed:

·         “[I]f the attorney's office is not open so as to admit of that service, then service may be made by leaving the notice or papers at the attorney's residence, with some person of not less than 18 years of age, if the attorney's residence is in the same county with his or her office[;]”

·         “[I]f the attorney's residence is not known or is not in the same county with his or her office, or, being in the same county, it is not open, or a person 18 years of age or older cannot be found at the attorney's residence, then service may be made by putting the notice or papers, enclosed in a sealed envelope, into the post office or a mail box, subpost office, substation, or mail chute or other like facility regularly maintained by the Government of the United States directed to the attorney at his or her office, if known, and otherwise to the attorney's residence, if known.”

·         “If neither the attorney's office nor residence is known, service may be made by delivering the notice or papers to the address of the attorney or party of record as designated on the court papers, or by delivering the notice or papers to the clerk of the court, for the attorney.”

(Code Civ. Proc. § 1011, subd. (a).) These alternative means of service were not attempted.

Accordingly, the motion is DENIED.