Judge: Kevin C. Brazile, Case: 23STCV18960, Date: 2024-03-11 Tentative Ruling

Case Number: 23STCV18960    Hearing Date: March 11, 2024    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Hearing Date:                         Monday, March 11, 2024

Case Name:                             Dean Shabbouei v. Jesse Alderman et al.

Case No.:                                23STCV18960

Motion:                                  Motion to Quash Service of Summons

Moving Party:                         Defendant Sean Suh

Responding Party:                  Plaintiff Dean Shabbouei

Notice:                                    NONE FILED

Ruling:            The Motion to Quash Service of Summons is DENIED.

Defendant Sean Suh to give notice.

BACKGROUND

            On August 9, 2023, Plaintiff Dean Shabbouei (“Plaintiff”) filed the complaint against Defendants Jesse Alderman, Sean Suh, and Does 1 through 50 (collectively, “Defendants”). The complaint alleges (1)breach of contract, (2) open account, (3) account stated, and (4) negligence. In or about March, 2021, Plaintiff and Defendants entered into a written Residential Lease Agreement for the leasing of the Real Property by said Defendants from Plaintiff for a period commencing March 10, 2021 and terminating March 10, 2022. Plaintiff has made demand to Defendants Jesse Alderman and Does 1 through 25, inclusive, and each of them, for payment of their outstanding obligation to Plaintiff of at least $65,940.00 for damages on Plaintiff’s property.

            On December 26, 2023, Defendant Sean Suh moved for an order quashing service of summons.  Plaintiff Dean Shabbouei filed his opposition on February 27, 2024. No reply has been filed as of March 6, 2024.

DISCUSSION

Applicable Law

            “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.” (Code Civ. Proc.,¿§ 418.10,¿subd.¿(a).)¿ 

“Under California's long-arm statute, California courts may exercise personal¿jurisdiction over nonresidents ‘on any basis not inconsistent with the Constitution of this¿state or of the United States.’ (§ 410.10.) ‘A state court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ‘traditional notions of fair play and substantial justice.’’¿[Citations.]” (ViaView, Inc. v. Retzlaff¿(2016) 1 Cal.App.5th 198, 209.)¿ 

There are two bases for personal jurisdiction of a forum state such as California over a non-resident: general jurisdiction and specific jurisdiction.¿ 

General jurisdiction is present when the defendant's activities in California are “substantial, continuous and systematic.” (Perkins v. Benguet Consolidated Mining Co.¿(1952) 342 U.S. 437, 446-447;¿Sonora Diamond Corp. v. Sup. Ct.¿(2000) 83 Cal.App.4th 523, 536.) The underlying theory is that “[s]uch¿a defendant's contacts with the forum are so wide-ranging that they take the place of physical presence in the forum state as a basis for jurisdiction.” (Vons Cos., Inc. v.¿Seabest¿Foods, Inc.¿(1996) 14 Cal.4th 434, 446.) Where general jurisdiction is present, there is personal jurisdiction over the defendant for any cause of action. (Ibid.)¿ 

The second basis for personal jurisdiction is specific jurisdiction (often referred to as “limited jurisdiction”), which may be present when a non-resident defendant does not have sufficient contacts for a finding of general jurisdiction. In order for there to be specific jurisdiction over a non-resident defendant in California, it must be shown that (a) the defendant purposefully directed its activities at forum residents or purposefully derived benefit from forum activities; (b) the plaintiff's claim arises out of or has a substantial connection to the defendant's contacts with the forum; and (c) the forum's exercise of jurisdiction over the defendant in the case at hand comports with the principles of “fair play and substantial justice.” (Burger King Corp. v. Rudzewicz¿(1985) 471 U.S. 462, 477-478;¿Vons Cos., Inc. v.¿Seabest¿Foods, Inc., supra, 14 Cal.4th at p. 446.)¿ 

It is well-established that acts committed outside the forum state which were directed at forum residents or intended to have an effect within the forum state may constitute “contacts” with the forum state sufficient to support the presence of specific jurisdiction. (See, e.g.,¿Hall v.¿LaRonde¿(1997) 56 Cal.App.4th 1342, 1347.)¿“A claim need not arise directly from the defendant's forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction. Rather,¿as long as¿the claim bears a substantial connection to the nonresident's forum contacts, the exercise of specific jurisdiction is appropriate.”¿(Vons Cos. v.¿Seabest¿Foods, Inc., supra,¿14 Cal.4th¿at p.¿452.)¿¿ 

After a plaintiff¿demonstrates by a preponderance of the evidence that the requirements for establishing personal jurisdiction are satisfied, the burden shifts to¿the defendant¿to demonstrate a compelling case why the Court's exercise of jurisdiction over him would be unreasonable. (See¿Hall v.¿LaRonde, supra, 56 Cal.App.4th at p. 1347.) In determining whether the¿court's jurisdiction over¿a defendant¿would be unreasonable, the¿court should consider “(1) the burden on¿[the defendant]¿of defending in California, (2) California's interests, (3) [plaintiff’s] interest in obtaining relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy, and (5)¿the shared interest of several States in furthering fundamental substantive social policies.” (Gilmore Bank v.¿AsiaTrust¿New Zealand Ltd. (2014) 223 Cal.App.4th 1558, 1574-1575.)¿ 

Application to Facts

Here, Defendant seeks to quash service of summons and complaint “on the ground that service of summons was not made according to any of the statutorily authorized methods for service of summons” resulting in a lack of personal jurisdiction.  (Not. of Mot. p. 1.)  Defendant states that on or about December 21, 2023, his attorney emailed him asking “if [he] had been served with a lawsuit from Dean Shabbouei” to which Defendant denied.  (Suh Decl. ¶ 2.)  Defendant further states that he was not aware of the substitute service and “the facility where the papers in this lawsuit were dropped off is not [his] usual place of business,” because he only has “membership interest in the LLC . . . [but] [he] neither manages or oversees any day-to-day activities there and visit[s] no more than a few times per year just to inspect” (Id. at ¶ 3.)  

Defendant also provides Victor Martinez’s declaration, the person who received the substitute service, to support his claims that service was improper. (Attachment 2.) The process server stated that Victor Martinez was “operations executive/personal assistant.” However, Victor Martinez denies that he told the process server that he was Defendant’s personal assistant because he is a VP of Operations and did not know that the papers were legal documents, or he would have told the server that this was not Defendant’s usual place of business. (Martinez Decl. ¶ 2-3.)Victor Martinez’s business card attached lists him as VP Operations which shows that he is not Defendant’s personal assistant. (Burt Decl. ¶ 2; Decl. of Diligence pdf p. 12.) Defendant also states that he has never lived in Oklahoma and presently lives in Costa Rica. (Id. at ¶ 4.) In support, Defendant provides his Costa Rica citizenship application which shows that he was granted temporary residence since March 8, 2022. (Id.; Exhibit A.)

In Opposition, Plaintiff states that being served by a registered process server creates a presumption that service was proper under Evidence Code § 647.  (Opp. at pdf p.3.)  Furthermore, the Proof of Service describes Victor Martinez as “operations executive/personal assistant” and Mr. Martinez was the VP of Operations which shows he was a person in charge. (Id. at pdf p.4.) Plaintiff also states that Defendant failed to show that he did not have any contact with the business location because he visits “a few times a year.” Plaintiff also provides evidence from the California Secretary of State showing that Defendant is an agent of/manager of and/or CEO of multiple businesses in California. (Tabibi Decl. ¶¶ 1-2.) Additionally, the California Secretary of State document also lists the Oklahoma address where he was served.  (Id. at ¶ 3.) The public record LexisNexis report shows that his current address was in Oklahoma. (Id. at ¶ 4.)

“Evidence Code § 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code § 647.)  Here, Plaintiff has established this presumption by filing Proof of Service by a registered process server that indicates the time, date, and address of service, and provides a declaration of diligence showing there were three prior attempts on different dates and times to serve the papers. (Decl. of Diligence p.2.) The process server also mailed the copy of summons and complaint after the purported substitute service was completed.

The Court finds that Defendant does not produce sufficient evidence to overcome this presumption.  Defendant states that Kevin Martinez was not his personal assistant and that he rarely visits the Oklahoma business location. (Mot. p.3.) However, the process server stated that Kevin Martinez was an “Operations Executive/personal assistant,” and since Kevin Martinez is the VP of Operations he was in charge of the operations and could have contacted Defendant.  In his declaration, Defendant states that he has a “membership interest in the LLC that owns the business at that location, [his] position is one of an owner – [he] neither manage[s] nor oversee[s] any day to day activities there and visit[s] no more than a few times per year just to inspect.”  (Suh Decl. ¶ 3; Martinez Decl. ¶3.) Moreover, he argues that he never lived in Oklahoma and instead resides in Costa Rica. Nevertheless, the LexisNexis report lists the Oklahoma address where he was sub-served as his current address and the California Secretary of State documents also lists another Oklahoma address showing further contacts in Oklahoma. (Tabibi Decl. ¶¶ 3-4.) Moreover, Defendant has constant, continuous, and substantial ties with California and Oklahoma as evidenced by the Secretary of State of California documents listing him as an agent of/manager of and/or CEO for multiple businesses. Defendant also lived on the subject property located in California where the damages occurred.

Therefore, Defendant’s assertions do not overcome the presumption established by the registered process server’s signed Proof of Service and Plaintiff’s evidence from the California Secretary of State. 

CONCLUSION

            The Motion to Quash Service of Summons is DENIED.

            Defendant Sean Suh to give notice.