Judge Melvin D. Sandvig, Case 22CHCV00770 2023-04-17 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00770, Date: 2023-04-17 Tentative Ruling

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Case Number: 22CHCV00770 Hearing Date: April 17, 2023 Dept: F47

Dept. F47

Date: 4/17/23

Case #22CHCV00770

MOTION TO QUASH SERVICE OF SUMMONS & AMENDED COMPLAINT

Motion filed on 12/21/22.

MOVING PARTY: Defendant Hayk Artashyan

RESPONDING PARTY: Plaintiff Armen Sefyan

NOTICE: ok

RELIEF REQUESTED: An order quashing service of summons in this action.

RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an alleged breach of an oral agreement to operate a childcare business. Plaintiff Armen Sefyan (Plaintiff) contends that on or about 12/1/18 Defendants Gohar Khachatryan (Khachatryan) and Armen Artashyan (Artashyan) entered into an oral agreement with Plaintiff and his wife Annie Khostegyan to be partners in a childcare business operated by Defendants at property owned by Plaintiff and his wife. Plaintiff contends that Defendants breached the agreement in or around April of 2022 by unilaterally moving the childcare business to a property Khachatryan and Artashyan had just purchased and claiming the business belonged solely to them. Defendant Hayk Artashyan (Hayk) is Khachatryan and Artashyan’s son to whom Plaintiff contends Khachatryan and Artashyan improperly transferred over $19,000.00 of funds from the childcare business.

On 9/19/22, Plaintiff and his wife filed the original complaint against Khachatryan and Artashyan for: (1) Breach of Contract, (2) Fraud, (3) Conspiracy to Commit Fraud, (4) Breach of Fiduciary Duty, (5) Embezzlement, (6) Conspiracy to Commit Embezzlement, (7) Conversion of Funds, (8) Constructive Trust, (9) Misappropriation of Funds, (10) Unjust Enrichment, (11) Quiet Title, (12) Property Damage, (13) Punitive Damages and (14) Breach of Contract – Residential Lease.

On 12/6/22, a First Amended Complaint was filed by Plaintiff Armen Sefyan, only, against Khachatryan, Artashyan and Hayk (who was not named in the original complaint) (collectively, Defendants) for: (1) Breach of Contract, (2) Fraud, (3) Breach of Fiduciary Duty, (4) Embezzlement, (5) Misappropriation of Funds, (6) Quiet Title, (7) Negligence and (8) Breach of Contract – Residential Lease.

On 12/21/23, Defendants filed three separate motions which seek an order quashing service of summons in this action. None of the motions indicate that they are made on behalf of a specific defendant and all of the motions include the same arguments as to all three defendants. Each motion should have specified on behalf of which defendant it was being made and included only arguments applicable to that defendant. Plaintiff has opposed the motion and a reply to the opposition has been filed. Based on the reply filed on 3/29/23, it appears that one of the motions currently scheduled for 4/17/23 is intended to be made on behalf of Hayk.

On 4/7/23, the parties stipulated that Plaintiff’s Complaint was amended to add Annie Khostegyan back as a Plaintiff. (See 4/7/23 Minute Order, p.5).

PROCEDURAL DEFECTS

The moving, opposing and reply papers suffer from procedural defects.

Defendants’ counsel has failed to bookmark the exhibits attached to the motion and reply. See CRC 3.1110(f)(4); (5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil).

The notice of motion fails to identify the exact Defendant on whose behalf the motion is being made. See CRC 3.1110(a). Additionally, the motion seems to be made on behalf of all Defendants. It is not until the reply that there is any indication that the motion is made by Hayk. It is not the responsibility of Plaintiff or the Court to figure out on behalf of which defendant a motion is being made and/or which arguments made in the motion apply to that defendant.

The majority of the exhibits attached to the motion are not authenticated.

The opposing memorandum of points and authorities exceeds the 15-page limit set forth in CRC 3.1113(d) without court approval. See CRC 3.1113(e). Despite the foregoing, the entire opposition memorandum was considered by the Court in ruling on the merits of the motion. CRC 3.1113(g); CRC 3.1300(d).

No authority is cited for Plaintiff’s request for attorney’s fees. (See Opposition, p.16:17-p.17:2). Even if authority for awarding attorney’s fees to a prevailing party on a motion to quash had been cited in the opposition, it would appear that Plaintiff, as an attorney representing himself, would not be able to recover such fees. See Nissim Argaman (1999) 73 CA4th 1173, 1177-1180; See also Trope (1995) 11 C4th 274, 289, 292.

Counsel and/or the parties are warned that failure to comply with court rules, statutory requirements and/or orders in the future may result in papers not being considered, matters being continued so that papers may be resubmitted in compliance with court orders and/or rules, and/or the imposition of sanctions.

ANALYSIS

On or before the last day to plead, or within any further time the court may for good cause allow, a defendant may move to quash the service of summons based on the ground that the court lacks jurisdiction over him or her. See CCP 418.10(a)(1). Knowledge of a proceeding, without a voluntary appearance by an improperly served party, is insufficient for the court to assert jurisdiction over that party. Coulston (1966) 245 CA2d 866, 870.

The motion contends that because Hayk was not named as a defendant in the original complaint, he was improperly added to the First Amended Complaint on 12/6/22. Hayk contends that Plaintiff was required to name him in place of a Doe Defendant pursuant to CCP 474. Hayk then seems to argue that he would not be properly named as a Doe Defendant because Plaintiff was not genuinely ignorant of his identity. The motion also argues that Annie Khostegyan was improperly removed as a Plaintiff from the First Amended Complaint.

CCP 472(a) provides:

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

Since Plaintiff filed the First Amended Complaint before any answer, demurrer or motion to strike was filed, he was free to add Hayk as a defendant in the First Amended Complaint. Hayk provides no authority for the proposition that a new defendant may only be added to an amended pleading by a Doe amendment pursuant to CCP 474. The argument that Annie Khostegyan was improperly removed as a Plaintiff from the First Amended Complaint is moot based on the stipulation that Khostegyan is added back as a Plaintiff. (See 4/7/23 Minute Order, p.5).

The motion further contends that Hayk was not properly served with the summons and First Amended Complaint because he was not personally served nor properly served by substitute service, mail or posting. See CCP 415.10, 415.20, 415.30(a), 415.45, 415.50. The motion contends that the summons and First Amended Complaint were improperly mailed by a party to the action. After the motion was filed and served, Hayk was served by substitute service on 1/4/23. (See Proof of Service filed 1/30/23). Therefore, the issue of improper service is moot.

CONCLUSION

Based on the foregoing, the motion is denied.

Dept. F47

Date: 4/17/23

Case #22CHCV00770

MOTION TO QUASH SERVICE OF SUMMONS & AMENDED COMPLAINT

Motion filed on 12/21/22.

MOVING PARTY: Defendant Gohar Khachatryan

RESPONDING PARTY: Plaintiff Armen Sefyan

NOTICE: ok

RELIEF REQUESTED: An order quashing service of summons in this action.

RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 4/7/23, the parties stipulated that Plaintiff’s Complaint was amended to add Annie Khostegyan back as a Plaintiff. (See 4/7/23 Minute Order, p.5).

PROCEDURAL DEFECTS

The moving, opposing and reply papers suffer from procedural defects.

Defendants’ counsel has failed to bookmark the exhibits attached to the motion and reply. See CRC 3.1110(f)(4); (5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil).

The notice of motion fails to identify the exact Defendant on whose behalf the motion is being made. See CRC 3.1110(a). Additionally, the motion seems to be made on behalf of all Defendants. It is not until the reply that there is any indication that the motion is made by Khachatryan. It is not the responsibility of Plaintiff or the Court to figure out on behalf of which defendant a motion is being made and/or which arguments made in the motion apply to that defendant.

The majority of the exhibits attached to the motion are not authenticated.

ANALYSIS

The motion contends that because Hayk was not named as a defendant in the original complaint, he was improperly added to the First Amended Complaint on 12/6/22. The motion contends that Plaintiff was required to name Hayk in place of a Doe Defendant pursuant to CCP 474. The motion then seems to argue that Hayk would not be properly named as a Doe Defendant because Plaintiff was not genuinely ignorant of his identity. The motion also argues that Annie Khostegyan was improperly removed as a Plaintiff from the First Amended Complaint.

CCP 472(a) provides:

Since Plaintiff filed the First Amended Complaint before any answer, demurrer or motion to strike was filed, he was free to add Hayk as a defendant in the First Amended Complaint. The motion provides no authority for the proposition that a new defendant may only be added to an amended pleading by a Doe amendment pursuant to CCP 474. Even if Hayk had been improperly added as a defendant in the First Amended Complaint (which the Court finds he was not), the motion fails to explain how such would cause the Court to lose jurisdiction over Khachatryan. The argument that Annie Khostegyan was improperly removed as a Plaintiff from the First Amended Complaint is moot based on the stipulation that Khostegyan is added back as a Plaintiff. (See 4/7/23 Minute Order, p.5).

The motion further contends that Khachatryan was not properly served with the summons and First Amended Complaint because she was not personally served nor properly served by substitute service, mail or posting. See CCP 415.10, 415.20, 415.30(a), 415.45, 415.50. After the motion was filed and served, Khachatryan was personally served on 1/4/23. (See Proof of Service filed 1/30/23). Therefore, the issue of improper service is moot.

CONCLUSION

Based on the foregoing, the motion is denied.