Judge: Mark H. Epstein, Case: 22SMCV02129, Date: 2023-02-08 Tentative Ruling

Case Number: 22SMCV02129    Hearing Date: February 8, 2023    Dept: R

The motion to quash is reluctantly GRANTED.

Plaintiff Yigal Hay (“plaintiff”) filed this breach of contract action against defendants Arman Solimani and Business Alliance Insurance Company.  Currently before the court is defendant Solimani’s motion to quash service of the summons.  Plaintiff opposes.

In reply, defendant argues that the opposition was not timely served on him.  While it was timely filed, service did not accord him the additional 2 court days to file a reply.  He contends that he only had one day to draft his reply.  Though defendant claims prejudice, his reply otherwise addressed all the relevant points.  Thus, the court does not believe there is actual prejudice.  The court also notes that defendant is in error as to how time is calculated for oppositions (and replies).  The code does not provide extra time to reply based on the manner of the opposition’s service.  What it does do is state that service should be calculated to get the papers in the opposing party’s hands quickly.  Accordingly, if the opposition is sent by electronic delivery, as a practical matter that means that the party being served will get the papers on the same day or, at worst, the next.  The opposition was therefore timely.

Both parties filed requests for judicial notice.  Defendant’s request is DENIED except to the attached grant deed.  The remaining exhibit is a “subject property history.”  The court has no idea whether the document is from or who compiled it.  There is no marker identifying it as a document from a governmental agency.  The court would typically consider the report in its evidentiary capacity but there is no statement from the custodian of records for whatever company or entity that compiled the report.  The court cannot accept the report as evidence.  This is not an issue for defendant, however, because his declaration alone is sufficient.

Plaintiff’s request for judicial notice is GRANTED to all records except for exhibits 4 and 10.  Those title reports are not subject to judicial notice, and they are not properly authenticated.

Defendant objected to plaintiff’s request for judicial notice.  The argument on timeliness is disregarded for reasons discussed previously.  As for plaintiff’s use of the documents for the truth of the matter asserted, the court believes plaintiff is only using these documents to show who is listed as the owner and what names are associated with what properties.  The court does not take those statements as true, just that official records reflect as much.  The objection is DENIED.

With that, the court turns to the merits.

Preliminarily, the court does not love these motions.  Defendant is plainly aware of the action and there is no impediment to his participation (in other words, this is not a case where defendant challenges whether he is subject to personal jurisdiction in California).  Rather, defendant’s counsel obviously knows where defendant is and how to get him notice.  Defendant is obviously not willing to have counsel share that information with plaintiff or allow counsel to accept service of process.  Rather, defendant, it seems, would prefer to engage in a game of hide and seek.  Defendant has that right, to be sure.  But given the facts here, it is a waste of time and the court does not want to hear defendant complain about the cost (if it is recoverable) or the 2 am knock at the door.  In other words, the court wonders, as a practical matter, how helpful this motion is.  Practice guides warn against filing such motions where the only objection is improper service because of the unnecessary expense and delay.  (See, e.g., Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶4:3.)  In fact, the Rutter Guide suggests that defense counsel accept service of summons where there is no issue as to personal jurisdiction (i.e., a foreign national defendant) or if the three-year statute on service of summons has run.  (Ibid.)

That said, neither defendant nor counsel is legally required to extend professional courtesies or litigate efficiently.  They are entitled to challenge service even if the purpose for doing so seems more like an effort to delay than anything else.  Given that, the motion is GRANTED because there is a reasonable question whether the proper person was served via substitute service as stated in the proof of service of summons.  The proof of service of summons indicates that “Shervin Doe” was handed the service of summons at 21814 San Miguel St. in Woodland Hills.  The declaration of diligence indicates that this was not the first time the process server encountered Shervin.  On November 9, the process server stated that a “Middle Eastern Male answered the door and nodded when I asked if he was Arman.  Once he'd gotten the doc's he suddenly changed his story, said his name is Shervin, that he misunderstood what I'd said, said he'd call the Def. Shervin makes the call, speaks to other person for a few minutes in a language I don't speak and eventually puts that person on speakerphone.  I ask if this is Armen, person on phone says ‘yes’.  So I explain what I've got and ask if I have his OK to leave doc's here.  He says he's out of town and that he wants to see doc's personally.  Shervin asks for my biz card.”  (Brown Decl. [attached to POS], ¶1.)

In his moving papers, defendant claims there is no way he was the person who was served.  He first disclaims any association with the property where service was purportedly effectuated, states he does not know who Shervin is and did not have a co-resident named Shervin at the property, never received a phone call from anyone on November 9 regarding the events described in the declaration, and denies other aspects of the purported service.  (Solimani Decl., ¶¶7-17.)  Defendant further notes that the grant deed for the property lists “interspousal transfer from ‘Niaz Tavakoli Nejad Zanjani’, spouse of Grantee who Granted the Subject Property to Amir Solimanikhoo, a married man as his sole and separate property [] signed on November 12, 2020.”  (Id. at ¶18.)  Defendant claims that the grant deed does not list him as the owner, he has no relationship with the listed people, and his legal name is “Arman Solimani[;] I am neither Armen nor Amir. I do not know who Armen or Amir Solimanikhoo are.”  (Id. at ¶¶8, 17-21.)

In opposition, plaintiff first argues that defendant has made a general appearance by filing another case.  The court disagrees.  Plaintiff cites no authority indicating that a separate lawsuit in front of another judge constitutes personal jurisdiction over defendant in the instant case for purposes of service of process.  The citations to Adam v. Saenger (1938) 303 U.S. 59 and Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654 concern the ways in which the California courts can obtain personal jurisdiction over nonresident defendants where they file actions in California.  That is not the issue here.  The question is personal jurisdiction via service, not contacts with the state.  In short, even assuming the cases are related (and they are), filing the related case does not constitute a general appearance in this one.  It is worth taking just a moment to explain why this is so for service of process but not personal jurisdiction in the constitutional due process sense.  Personal jurisdiction in the due process/long arm sense is a question of state power.  Unique in the world, the United States does not allow any state to obtain jurisdiction of any US resident.  Because each state is sovereign, to exercise jurisdiction over a person that person must have sufficient contacts with the state.  So, when looking to see whether there have been minimum contacts, one looks to see whether the person challenging jurisdiction has availed herself or himself of certain rights or aspects of California.  One such purposeful availment would be suing someone in California over the same thing about which the challenging defendant is being sued.  If a challenging defendant comes into California and sues over a business transaction, for example, a separate lawsuit over the same transaction might well lie; having submitted itself to California’s jurisdiction as a plaintiff involving the transaction, the same person can hardly be heard to complain that it would be fundamentally unfair for California to resolve the other side of the very same dispute.  Thus, personal jurisdiction is a question of state power.  On the other hand, service of process, which is what is at issue here, is a question of this particular court’s power.  This court cannot exercise jurisdiction over a party to a case unless that person has been served with a summons and complaint.  It is that service that establishes this court’s ability to issue orders that must be obeyed by the defendant.  For that reason, even if California has ample power to issue binding judgments as to a party, whether this particular court has the power to do so is based on the more technical service requirements.  For that reason, the fact that defendant here is the plaintiff in a related case does not, of itself, give this court jurisdiction.

Next, plaintiff contends that defendant has used several aliases throughout his career to recycle names and addresses to shield himself from creditors.  Plaintiff’s evidence consists of various public records linking defendant to Amir Solimanikhoo and the address where service was made.  Of note are records from the Contractors State License Board that indicate defendant is associated with two businesses: Custom Wood Finishing and A Solimani, Inc. (Pltf. RJN, Exh. 5.)  In 2009, A Solimani, Inc. named Amir (not Arman) Solimani as the agent of service of process and listed the address as 23345 Oxnard St., Woodland Hills, CA 91367.  (Id. at Exh. 6.)   A Solimani, Inc. later named Amir Solimanikhoo as the CEO, secretary, and CFO of A Solimani, Inc., and Solimanikhoo later dissolved the entity. (Id. at Exhs. 7-8.)  As plaintiff notes, this links defendnat’s name to Amir Solimani and Amir Solimanikhoo.  Plaintiff lists additional evidence to same effect.  There is a link, in some way, shape, or form, between all these names and defendant.

The issue, however, is that the evidence does not sufficiently establish that defendant Arman Solimani is the same person as Amir Solimani, Amir Solimanikhoo, or Aram Solimani.  The names are all similar, share some unidentified business relationship, and there is some overlap in property addresses, but that is not quite enough.  In reply, defendant claims the similarity in names means nothing.  Without more definitive evidence, service was not properly effectuated on defendant.

Thus, while there is some evidence indicating defendant is evading service, it is not so conclusive as to indicate that he was in fact served, especially where there is such a strong declaration in the moving papers.  The motion is GRANTED.  The request for sanctions is DENIED, and the question is not even a close one.  Not only did plaintiff have a strong basis for believing that service was effectuated, the court sees no statutory basis for sanctions.  In reply, defendant claims plaintiff’s counsel is misleading the court and “must be sanctions for their contemptuous conduct.”  (Reply, p. 8:24.)  There is an entire body of law on the procedural requirements for such sanctions.  Defendant has not established compliance with those requirements.  The request is DENIED for lack of authority.  Even if defendant complied, the court sees no basis upon which to grant sanctions.  The opposition was well justified.  And, as between plaintiff and defendant, the court’s view as to which side is playing games is not the same as defendant’s view.

The court will ask defendant’s counsel if he is authorized to accept service of summons at the hearing, which will put this issue to rest. If not, plaintiff will have to attempt service again.  The court notes that the causes of action asserted here by Hay can almost certainly be asserted in a cross-complaint in the other case, so it is hard to see how defendant will be able to escape adjudication.  And, notwithstanding defendant’s opposition, this court agrees that the two cases ought to be related and will issue an order thereon if it has not already done so.  Given that, the court would appreciate if defense counsel would keep the powder dry for motions that have a somewhat greater impact on the case.