Judge Kerry Bensinger, Case Number: 24STCV5772, Date: 2024-09-18 Tentative Ruling

MOTION FOR ORDER AUTHORIZING SERVICE BY FACEBOOK, OR ALTERNATIVELY, FINDING GENERAL APPEARANCE HAS BEEN MADE BY DEFENDANT ION THEODOR CIOCHIU, OR FINDING SUBSTITUTED SERVICE MAY BE EFFECTUATED

This action arises from a dispute between former business partners. Plaintiff Howard Scott Jordan II (Jordan) has extensive knowledge in intellectual property, coding, and marketing. In November 2022, Defendant Irina Ioana Ciochiu (Irina) engaged Jordan to work with her and Wynn Capital Management SRL (Wynn). Wynn is engaged in the business of making claims on airport consumers’ behalf in connection with flight delays and other issues stemming from airline travel. Wynn, a Romanian company, is owned by Ion Theodor Ciochiu (Ion).

According to Plaintiff, based on Irina’s false representations that she owns Wynn’s equity, he agreed to enter into a partnership with Irina. Jordan and Irina agreed that, in exchange for Jordan’s contribution to coding and marketing, he would receive a 49% interest in Wynn’s revenues and profits. As a means to carry out the partnership Jordan and Irina created FlightHelp LLC (FlightHelp). During the partnership, Jordan contributed services, purchased software, and helped to develop intellectual property to increase Wynn’s revenue.

The partnership proved fruitful. Consumer claims totaled over $22,000,000 by the end of Summer 2023. Irina embarked on a scheme to sever Jordan from the partnership, which included but was not limited to refusing to pay any of Jordan’s development invoices, salary, or distributions from Wynn’s operations. Further, Irina locked Jordan out of any and all Wynn/FlightHelp-related accounts and depleted FlightHelp’s bank accounts without Jordan’s authorization or consent.

On March 7, 2024, Jordan and FlightHelp (collectively, “Plaintiffs”) commenced this action against Defendants Irina, Ion, Wynn, and Does 1-20 alleging causes of action for (1) fraud, (2) breach of fiduciary duty, (3) conversion, (4) breach of partnership agreement, (5) unfair competition, (6) violations of Bus. & Prof. Code § 17200, et seq. (7) partnership dissolution (Corp. Code § 16801), (8) violations of Penal Code § 496, (9) accounting, and (10) breach of contract. Plaintiffs later filed amendments to the complaint naming International Flight Help Management, Inc. (IFHM) as Doe 1 and Flight Help Management, LLC (FHM) as Doe 2.

On May 13, 2024, Wynn filed a motion to quash service of summons and complaint. Ion filed a declaration in support of the motion to quash. Ion has not appeared in this action.

On June 27, 2024, Plaintiffs filed this Motion For Order Authorizing Service by Facebook, or Alternatively, Finding General Appearance Has Been Made By Defendant Ion Theodor Ciochiu, or Finding Substitute Service May Be Effectuated (Motion for Alternative Service).

Defendants Irina and IFHM (collectively referred to herein as Defendants) filed an opposition.

Where no law exists for the service of summons in a particular action, the court may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court.” (Code Civ. Proc. (CCP), § 413.30.)

Code of Civil Procedure section 415.30 permits service by mail with copies of the notice, acknowledgement of receipt of summons, and a return envelope, postage prepaid, addressed to the sender. (CCP, § 415.30, subds. (a), (b).) In addition to this method of service, “the other three usual methods for completing service within California are (1) personal delivery to the defendant or someone authorized by law to accept the summons on the defendant’s behalf (§ 415.10); (2) delivery to someone else at the defendant's usual residence or place of business (§ 415.20); and (3) service by publication (§ 415.50).” (Crane v. Dolihite (2021) 70 Cal.App.5th 772, 786.) “[W]hen none of the four usual methods of service is available, the trial court has the discretion to authorize service by another means.” (Ibid.)

Defendants assert objections to the Declaration of Marius Mateescu. This court is unaware of any legal authority which requires a court to rule on evidentiary objections with respect to motions, except with respect to motions for summary motion/adjudication (CCP § 437c (q)] or special motions to strike (CCP § 425.16 (b)(2); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949). Accordingly, the court declines to rule on Defendants’ objections.

Plaintiffs bases this motion on the grounds that: (i) despite Plaintiffs’ diligent efforts, Ion is actively evading personal service of process; (ii) Ion is on actual notice of this action, as he filed a declaration in this action admitting he understands he has been sued; and (iii) Ion is regularly on Facebook such that serving him via Facebook Messenger is the manner of service that is reasonably calculated to give Ion actual notice of this action. (See Notice of Motion, p. 1:1-15.) Plaintiffs further allege “[s]erving Ion through other methods, including international treaties, is impossible given his constant travels, and may take months or years given those travels.” (Motion, p. 6:4.)

Plaintiffs fail to establish there is no law providing for service of summons on Ion. For instance, Plaintiffs do not establish service by publication (CCP § 415.50) is unavailable. (See CCP § 415.50 [providing for service by publication where it appears based on an affidavit “that the party to be served cannot with reasonable diligence be served in another manner specific in this article and that either: (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.”].)

Plaintiffs cite Searles v. Archangel (2021) 60 Cal.Appp.5th 43, for the proposition the court has discretion to order service of summons via social media. Searles, however, is not on point. Searles, a civil harassment case, and addressed the issue whether a restraining order could be served by an alternative method—via social media. Searles argued CCP § 413.30 permitted social media as an alternative service method. The Searles Court disagreed. The Court of Appeal wrote, “section 413.30 is inapplicable in this situation: The necessary prerequisite for the court to authorize an alternative method of service—that “no provision is made in this chapter or other law for the service for summons”—is unsatisfied.” (Searles, 60 Cal.App.5th at p. 54.) That observation is relevant here. Plaintiffs do not show all methods of service under the CCP are “unsatisified.”

Moreover, Defendants correctly argue that the Hague Convention applies to this case. Based on the evidence presented, Ion resides in Romania. (See Irina Decl., ¶ 3, Exs. A, B.) Romania is a signatory to the Hague Convention. (Code Civ. Pro., § 413.10, subd. (c); Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638.) The Hague Convention has its own service requirements. (Denlinger v. Chinadotcom Corp. (2003) 110 Cal.App.4th 1396, 1399.) The law exists for the service of summons in this action, and alternative service cannot be granted. Further, there is no proof of the parties’ agreement to waive formal service of process in favor of a specified type of notification. (See Rockefeller Tech. Invs. (Asia) VII v. Changzhou SinoType Tech. Co. (2020) 9 Cal.5th 125, 145 [stating the Hague Convention does not apply when parties have agreed to waive formal service of process in favor of a specified type of notification].)

Plaintiffs attempt to circumvent the Hague Convention by arguing the Convention “circularly allows for service to be effectuated on a foreign national in any manner in which the forum state allows for. So, under the Hague Convention, service on Ion would be proper if California law allows for such service.” (Reply, p. 2:7-9.) In support, Plaintiffs cite Article 19 of the Convention, which states, “To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.” Plaintiffs misread Article 19. Article 19 refers to the Contracting State, i.e., the signatory to the Convention. Thus, the Hague Convention permits service in any manner in which Romania allows for, not California. To the extent Plaintiffs base their position on the premise that Ion is a resident of California, Plaintiffs have not established Ion resides here.

Plaintiffs alternatively argue Ion has made a general appearance in this action. In support of this argument, Plaintiffs point to Ion’s declaration filed in support of Wynn’s motion to quash summons.

CCP section 410.50(a) provides, in pertinent part, that a “general appearance by a party is equivalent to personal service of summons on such party.”

CCP section 1014 provides, in pertinent part, as follows: “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.”

“The statutory list contained in section 1014 of what constitutes an appearance is not exclusive. A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed. [Citation] If the defendant confines its participation in the action to objecting to lack of jurisdiction over the person, there is no general appearance. [Citations] However, a party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process, or personal jurisdiction. [Citations] The Courts of Appeal have described the scope of actions in the litigation process which constitute a general appearance as follows: ‘A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act. [Citations] ‘If the defendant ‘raises any other question, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general…’ [Citation.]’ [Citations] Thus, if a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance. [Citations]” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52-53 (Dial 800); see also Dial 800, at pp. 53-54 [collecting cases where general appearance found].) “A court is thus required to analyze the defendant's papers to determine if any affirmative relief could be granted on the merits, which is a general appearance. (Id. at p. 54.)

Here, Wynn filed the motion to quash. Ion filed a supporting declaration. In that declaration, Ion states the following: (1) he is a resident of Romania, not California (Ion Decl. In Support of Wynn’s Motion to Quash, ¶¶ 1-2); (2) he has not been personally served with the summons and complaint (Ion. Decl., ¶ 3); (3) explains Wynn’s business and its status as a Romanian company (Ion Decl., ¶ 4); (4) attests that he is the sole owner of Wynn and would likely be Wynn’s person most qualified (Ion Decl., ¶¶ 5-7); and (5) describes the burden it would impose to require Wynn to defend this action in California (Ion Decl., ¶ 7). Ion does not request any affirmative relief on his or Wynn’s behalf. Absent a request for affirmative relief, the court declines to construe Ion’s act of filing that declaration as a general appearance.

Plaintiffs advance one last argument. They argue the court should permit service on Ion by first-class mail at Irina’s Los Angeles residence because Ion stated in his Facebook that he is a resident of Los Angeles. Even if a statement made on a social media platform were sufficient to establish a party’s residence, Ion’s “residence” status did not identify Irina’s residence as Ion’s residence. Accordingly, there is no basis to issue an order permitting Plaintiffs to serve Ion by mail at Irina’s address.

Kerry Bensinger

Judge of the Superior Court