Judge Ronald F. Frank, Case 21TRCV00651 2023-03-13 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00651, Date: 2023-03-13 Tentative Ruling

Case Number: 21TRCV00651 Hearing Date: March 13, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 13, 2023¿¿

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CASE NUMBER: 21TRCV00651

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CASE NAME: Martorell Law APC v. Evgeny Afineevsky, et al.

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MOVING PARTY: Specially appearing Defendants, Evegny Afineesvsky and Dissolved Nevada Corporation Pray for Ukraine Production, LLC

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RESPONDING PARTY: Plaintiff, Martorell Law APC

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TRIAL DATE: None set¿

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MOTION:¿ (1) Motion to Quash

Tentative Rulings: (1) Denied in part and granted in part. Substantial compliance as to the individual defendant has been shown, but not as to the entity defendant. Responsive pleading by defendant Evegny Afineesvsky shall be filed by March 30, 2023.

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I. BACKGROUND¿¿

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A. Factual¿¿

On July 23, 2021, Plaintiff, Martorell Law APC filed a complaint against Evency Afineevsky, an individual, and Pray For Ukraine Production, LLC, a Nevada Limited Liability Company, and DOES 1 through 100. The complaint alleges causes of action for: (1) Breach of Contract; (2) Accounts Stated; (3) Open Book Account; and (4) Reasonable Value of Services Rendered. The alleged facts are based on an alleged non-payment of fees incurred four years prior during a representation that lasted approximately three months and terminated in September 2017.

On April 3, 2022, according to Plaintiff’s proofs of service filed on May 11, 2022 and May 12, 2022, Plaintiff submitted that it sub-served the Specially Appearing Defendants by delivering a copy of the service papers to a person named “Maria” identified as a “roommate” or “housekeeper.”

Defendants now assert that Plaintiff did not properly effect service of process nor substantially comply with the requirements for substituted service of process on an individual or corporate defendant pursuant to Code of Civil Procedure sections 415.20 and 416.20.

B. Procedural¿¿

On July 1, 2022, Specially Appearing Defendants, Evgeny Afineevsky and Dissolved Nevada Corporation Pray for Ukraine Production, LLC filed Motion to Quash service of summons for improper service of process. On February 28, 2023, Plaintiff filed an opposition to Defendants’ Motion to Quash Service of Summons. On March 8, 2023, Defendant filed a reply brief and objections to the opposing declarations.

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¿II. ANALYSIS¿

A. Legal Standard ¿

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See¿American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See¿id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar¿(2011) 194 Cal.App.4th 1419, 1428; cf.¿People v. Chavez¿(1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See¿Yadegar, supra, 194 Cal.App.4th at 1428.)

B. Discussion

Defendants first argue that substitute service on Evgeny Afneevsky and Pray for Ukraine Production, LLC under Code of Civil Procedure section 415.20 was not permissible because Plaintiff failed to exercise reasonable diligence in attempting personal service first. Defendant argues that Plaintiff’s proof of service (Bush Decl., Exhibits 2-4) offers no evidence that reasonable diligence to serve Defendants personally was attempted prior to serving substitute service. Instead, Defendants contend that the proofs only show one attempt at delivering the service papers which resulted in immediate resort to substituted service on a person named “Maria,” who is described as alternatively a “roommate” or “housekeeper.” As such, Defendant argues that Plaintiff’s proofs of service are plainly defective in that they do not include any evidence showing that Plaintiff’s “reasonable diligence” in attempting personal service on the Specially Appearing Defendants prior to resorting to substitute service. Thus, Defendant contends that service of process was defective.

Defendants also assert that Plaintiff waited seven months to attempt to serve the summons and complaint and did not make any attempts at personal service before resorting to substitute service. Defendants note that Afineevsky resides in the same city as Plaintiff, and that Plaintiff represented Afineevsky four years prior, and therefore, presumably possessed Afineevsky’s contact information.

Additionally, Defendants argue that service of summons as to Pray for Ukraine Production, LLC must be quashed because Plaintiff failed to comply with the Code requirements for service on a dissolved corporation. Code of Civil Procedure § 416.20 notes that a summons may be served on a [dissolved] corporation by delivering a coy of the summons and of the complaint: (a) to a person who is a trustee of the corporation and of its stockholders or members; or (b) when authorized by any provision in Sections 2011 or 2114 of the Corporations Code (or Sections 3301 to 3303, inclusive, or sections 6500 to 6504, inclusive, of the Corporations Code as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by such provision.

Here, Defendants asset that Plaintiff acknowledged in its Complaint that it represented Pray for Ukraine Production, LLC, and therefore, Defendants contend that Plaintiff knew the identity of “an officer” of Pray for Ukraine Production, LLC. As such, Defendant argues that Plaintiff has failed to produce even a scintilla of evidence of reasonable diligence in attempting to personally serve Afineevsky prior to resorting to substitute service on a person named “Maria.” Further, Defendant notes that the Corporations Code requires “delivery” to the officer or “any agent upon whom process might be served at the time of dissolution.” Defendant asserts that Plaintiff has offered no evidence that the individual identified as “Maria” fits the criteria or the requirements of the Code in this regard.

In opposition, Plaintiff asserts that Defendant was served by a licensed private investigator and the proofs of service comply with statutory standards and such there is a rebuttable presumption that service is proper and the declaration of Defendant is insufficient to rebut the presumption of proper service. Plaintiff argues that service of the complaint and summons was proper as the private investigator attempted service six times before affecting substitute service on Defendant Afineevsky’s housekeeper at the residence he still owns. The proofs of service (Exhibit C) note that Plaintiff’s private investigator served a woman named Maria that identified herself as Defendant Afineevsky’s housekeeper. The service took place on April 4, 2022 at 1:55 p.m. by George Franco a licensed private investigator (California Private Investigator’s License number 23866). Mr. Franco signed under oath that such service was effected on this date and time, and such substituted service is valid as he exercised due diligence and upon the seventh time of attempted personal service, left the service papers with a competent member of the household, the housekeeper, “Maria.”

Plaintiffs further contend that Defendants have actual notice of this lawsuit as evidenced by the facts that Defendant Afineevsky has spoken and received messages from Mr. Martorell regarding this lawsuit and Defendant Afineevsky has retained counsel to defend him in this action. In short, Plaintiffs contend Defendants’ due process rights have not been violated and the public policy behind California’s service statutes has been satisfied as Defendants clearly have notice of this lawsuit against them and have been given ample opportunity to file a responsive pleading.

In Defendants’ reply papers, they object to the Martorell and Franco Declarations noting that they should be disregarded because Franco Declaration was untimely filed (by one day) and because it was a “sham affidavit.” Defendants cite to Code of Civil Procedure § 1005(b) noting that all papers supporting an opposition to a motion “shall be filed with the court and a copy served on each party at least nine court days…before the hearing.” (CCP § 1005(b), Emphasis added.) The deadline for all opposition papers was February 28, 2023.

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On the record presented, the Court finds substantial compliance with the service of process requirements of California law¿as to the individual defendant but not as to the dissolved corporate defendant. ¿Regardless of whether Mr. Franco is a private investigator or a registered process server, his declaration demonstrates reasonable diligence in effort to personally serve Defendant Evegny Afineesvsky before attempted substituted service. The Court does not apply the Evidence Code presumption applicable to registered process servers because Mr. Franco is not one, but the declaration presents sufficient facts for the Court to find that valid substituted service after 3 or more duly diligent effects to serve in person had failed. The Motion to quash as to Defendant Evegny Afineesvsky is thus denied. To the extent the motion is also brought on behalf of Dissolved Nevada Corporation Pray for Ukraine Production, LLC it is granted. Mr. Afineesvksy’s time to file a response pleading shall be on or before March 30, 2023.