Judge: Mark C. Kim, Case: 22LBCV00198, Date: 2023-01-10 Tentative Ruling

Case Number: 22LBCV00198    Hearing Date: January 10, 2023    Dept: S27

1.     Background Facts

Plaintiff, HiveLinq, SLR filed this action against Defendant, Secure ePayments for breach of contract, promissory fraud, and unfair business practices on 6/02/22.  The crux of the complaint is that Defendant breached a card processing service agreement. 

On 8/15/22, Defendant filed a motion to quash service of the summons and complaint.  The hearing on the motion to quash is scheduled for 1/24/23.  The motion to quash is brought on three grounds:  service was improperly effectuated; this Court lacks personal jurisdiction over Defendant; and the parties’ contract includes a binding venue provision, which provides for venue in Singapore. 

On 9/27/22, Plaintiff filed a First Amended Complaint.  The FAC adds Sotiris “Max” Macromallis as a plaintiff and adds Kandace Carrasco as a defendant.  The FAC adds allegations that Carrasco, in her capacity as the entity defendant’s agent, made representations that Defendant operates out of LA County in Harbor City and that its employees work out of the Harbor City office and live nearby.  The FAC also adds a cause of action for Violation of Penal Code §496. 

2.     Motion to Compel

a.     Relief Sought

On 9/27/22, Plaintiff propounded discovery relating to jurisdiction on Defendant.  Defendant did not respond.  Plaintiff filed this motion to compel responses and seeks imposition of sanctions.

b.     Initial Issue

On 12/28/22, Defendant filed an untimely opposition to the motion.  Per CCP §1005(b), opposition was due nine court days before the hearing, which fell on 12/27/22.  Defendant’s proof of service indicates it served the opposition by fax on 12/28/22. 

c.     Opposition Arguments

Defendant contends the entity defendant was never properly served with the summons and complaint, and no amount of jurisdictional discovery will change that fact.  It also contends Plaintiff failed to properly serve the amended complaint on either of the defendants.  It contends the subject discovery was propounded prematurely, and no response is warranted.  It contends jurisdictional discovery is only proper after the summons has been served, which it has not in this case.  It contends sanctions should be imposed per CCP §128.7. 

d.     Analysis

The Code permits a plaintiff to propound discovery on a defendant ten days after service of the summons and complaint.  Pursuant to 1880 Corp. v. Superior Court (1962) 57 Cal.2d 840, particularly appropriate at the early stage of litigation is jurisdictional discovery propounded in response to a motion to quash.  Notably, the hearing on a motion to quash is often continued to permit jurisdictional discovery to go forward.  See Beckman v. Thompson (1992) 4 Cal.App.4^th 481, 486-487.

Defendant in this case has a motion to quash scheduled for 1/24/23.  The motion is brought on three grounds.  First and foremost, it is brought on the ground that the summons and complaint have not been properly served.  If the Court rules in Defendant’s favor on this ground, then the discovery propounded will necessarily be premature.  Additionally, the motion to quash contends jurisdiction is improper due to the parties’ forum selection clause; if the Court agrees with Defendant on this point, then the motion to compel will be moot.

The Court is continuing the hearing on the motion to compel to 1/24/23, to be heard contemporaneously with the motion to quash.  If the Court grants the motion to quash on either of the two grounds discussed above, the Court will not hear the motion to compel.  If the Court denies the motion to quash on those two grounds, then it will consider the motion to compel on its merits in connection with the issue of whether service should be quashed due to lack of personal jurisdiction (minimum contacts).

Plaintiff is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.