Judge: Michael E. Whitaker, Case: 23STCV00692, Date: 2025-04-03 Tentative Ruling

Case Number: 23STCV00692    Hearing Date: April 3, 2025    Dept: 207

TENTATIVE RULING

BACKGROUND

Plaintiff Fred Behfarin (Plaintiff) brought suit against Defendants Sergey Menshikov (“Sergey”); Lucy Menshikova (“Lucy”); and Larisa Menshikova (“Larisa”) (the “Individual Defendants”); DH Distribution Inc. (“DHD”); Beverly Hills Escrow, Inc. (“BHE”) (collectively, “Defendants”) stemming from a real property dispute. 

DHD is operated by Individual Defendants, Sergey (the sole shareholder of DHD) and his daughters Larisa (DHD’s agent for service of process and former officer and director of DHD) and Lucy.  (Notice of Related Case, Attachment 1h (hereinafter “NRC”) ¶ 2; Third Amended Complaint (hereinafter “TAC”) ¶¶ 3, 5-6.) 

There have been two motions to quash service on the Individual Defendants.  With respect to the first motion, the Court denied the motion as to Larisa, who resides and works in California, finding Larisa was validly served by substitute service at her usual place of business, but granted the motion as to Sergey and Lucy, who Plaintiff claimed to have served in California, after the Court found that both Sergey and Lucy actually reside in the Russian Federation, and therefore must be served in accordance with the Hague Service Convention.  (See September 14, 2023 Minute Order.)  In so holding, the Court rejected Plaintiff’s arguments that (1) the defendants waived any objection to the Court’s jurisdiction by voluntarily appearing in the related case; and (2) the Statement of Information for DHD filed with the California Secretary of State on August 9, 2022, which lists an address for Sergey in California should control and Sergey should be held to accept service of process at that California address.  (Ibid.)

Subsequent to the Court’s September 14, 2023 Order, Larisa filed a new Statement of Information for DHD on October 4, 2023, listing a new address in West Hollywood, California for both herself, as agent for service of process for DHD, and for Sergey.  Plaintiff subsequently attempted service of Sergey at that new West Hollywood address, and filed a proof of substitute service on Sergey, indicating service was effectuated on November 16, 2023.  On February 14, 2024, the Court granted Sergey’s motion to quash on the grounds that the evidence demonstrated Sergey was still living in the Russian Federation.

Behfarin now moves for an order to validate service of process on the Individual Defendants or in the alternative for an order authorizing informal service by private process servers in the Russian Federation.

The Individual Defendants, specially appearing, oppose the motion, and Behfarin replies.

EVIDENTIARY OBJECTIONS

            The Court rules as follows with respect to Sergey and Lucy’s Evidentiary Objections:

1.     Overruled

2.     Overruled

3.     Sustained

4.     Sustained

5.     Sustained

6.     Sustained

7.     Overruled

8.     Sustained

The Court rules as follows with respect to Behfarin’s Evidentiary Objections:

1.     Overruled

2.     Overruled

3.     Overruled

4.     Overruled

LEGAL STANDARDS

For service on persons within California, generally, service of summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” they may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address with a competent member of the household or person apparently in charge of the office, place of business, or usual mailing address, at least 18 years old, by informing them of the contents, and thereafter mailing a copy to the person at the place where the copy was left.  (Code Civ. Proc., § 425.20, subd. (b).)

Under Code of Civil Procedure section 413.10, subdivision (c), a summons shall be served on a person “[o]utside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory.  These rules are subject to the provisions of the Convention of the ‘Service Abroad of Judicial and Extrajudicial Documents’ in Civil or Commercial Matters (Hague Service Convention).”  (Code Civ. Proc., § 413.10, subd. (c).)  The methods enumerated in section 413.10, subdivision (c) for serving defendants abroad all require transmission of documents abroad, and therefore are preempted by the Hague Conventions as to defendants in signatory countries.  (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

“The ‘primary innovation’ of the Hague Service Convention—set out in Articles 2–7—is that it ‘requires each state to establish a central authority to receive requests for service of documents from other countries.’”  (Water Splash, Inc. v. Menon (2017) 581 U.S. 271, 275.)  “Submitting a request to a central authority is not, however, the only method of service approved by the Convention. For example, Article 8 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not otherwise specified in the Convention; and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit service from abroad via methods not otherwise allowed by the Convention.”  (Ibid.)  Article 10 of the Convention provides:

Provided the State of destination does not object, the present Convention shall not interfere with—

(a)   the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b)   the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

(c)   the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”

(Ibid.)  The Supreme Court has interpreted Article 10(a) as permitting service by mail within signatory countries that have not objected to it.  (Id. at 284.)

A state may also exercise jurisdiction over an individual who consents to such jurisdiction.  (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658.)  “Express consent to a court's jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence.”  (Ibid. [cleaned up].)  “Consent to a court's jurisdiction may also be implied by conduct.”  (Ibid.)  For example, a nonresident plaintiff who commences an action thereby submits to that court’s personal jurisdiction on any cross-complaint filed against him by the defendant.”  (Ibid.) 

“Similarly, a nonresident plaintiff who has filed a suit in California against particular parties has consented to jurisdiction in California when these same parties later sue him in a related action.”  (Sea Foods Co., Ltd. v. O.M. Foods Co., Ltd. (2007) 150 Cal.App.4th 769, 786, as modified (May 23, 2007).)  “By choosing a particular forum, [the] plaintiff is considered to have voluntarily submitted to the court's jurisdiction ‘for all purposes for which justice to the defendant requires his presence.”  (Sea Foods Co., supra, 150 Cal.App.4th at p. 786.)

ANALYSIS

Behfarin contends there are six ways to effectuate service on the Individual Defendants residing in the Russian Federation:

(1) Acceptance of the Notice of Acknowledgment and Receipt

(2) Formal Service through the Hague Convention

(3) Informal Service by private process servers in Russia

(4) Informal Service by mail, as approved by some U.S. Federal courts

(5) Informal Service by email, as approved by some U.S. Federal courts

(6) Stipulation by the parties to consolidate the two related cases.

            Behfarin contends that formal service through the Hague Service Convention is impossible at this time because the Department of Justice has indicated that Russia has breached the Convention by refusing to accept documents from the United States and “litigants should not treat Russia as a member of the Convention for effectuating service” because “Russia effectively severed Hague Service Convention ties with U.S. courts in July 2003 and continues to rebuff efforts to restore normal judicial cooperation.”  In support, Behfarin cites to Kuklachev v. Gelfman (E.D.N.Y. 2008) 2008 WL 5068860 at p. *2, fn. 2, which in turn cites to http://travel.state.gov/law/info/judicial/judicial_3831.html, last visited September 23, 2008.

            The Court notes that the URL no longer appears active.  Therefore, given that the information is apparently from 2008, and no longer appears on the government website, Behfarin has not adequately demonstrated that formal service through the Hague Service Convention is currently impossible.

            Behfarin next contends that service by mail is also impossible because all mail deliveries to Russia have been suspended by all carriers.  Behfarin does not provide any admissible evidentiary support for this contention. 

Behfarin also contends that the Individual Defendants have refused to submit their correct addresses in Russia.  In support Behfarin provides email correspondence from someone at Ancillary International indicating that the address listed for Sergey “does not show up online” and the address listed for Lucy “appears to be a building with multiple businesses operating there.”  However, as discussed above, the Court sustains Defendants’ objection to these emails.  As such, Behfarin does not offer any admissible evidence that the Russian addresses Individual Defendants have provided on the record under penalty of perjury are incorrect. 

On reply, Behfarin argues (1) the Individual Defendants “have steadfastly refused to submit their correct addresses in Los Angeles”; (2) the Declarations Sergey and Lucy submitted in connection with the motions to quash are over a year old, and therefore they could have moved since then; and (3) two process server declarations indicate that the Russian addresses provided appear to be a large building where multiple businesses operate, not a residence.[1]

Moreover, Behfarin’s assertions that he has been unable to send the Individual Defendants mail in Russia conflicts with his concurrent assertion that he mailed the Individual Defendants a Notice of Acknowledgment and Receipt.  (See Code Civ. Proc., § 415.30.)  Nor has Behfarin provided evidence demonstrating that Sergey and/or Lucy have “correct” addresses in Los Angeles or that they have moved from the addresses they previously provided to the Court.

Furthermore, because Behfarin has not adequately demonstrated that compliance with the Hague Service Convention is currently impossible, that the Russian addresses provided are invalid, or that he has tried unsuccessfully to mail them a notice of acknowledgment and receipt, the Court cannot grant Behfarin’s alternative request for leave to serve Sergey and Lucy in another manner.

CONCLUSION AND ORDER

            Therefore, the Court denies Behfarin’s motion without prejudice.  Behfarin shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  April 3, 2025                                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court