Judge: Stephanie M. Bowick, Case: BC718405, Date: 2024-11-19 Tentative Ruling
Case Number: BC718405 Hearing Date: November 19, 2024 Dept: 19
MOTIONS TO QUASH ORDERS FOR JUDGMENT DEBTOR EXAMINATIONS FOR IMPROPER SERVICE.
TENTATIVE RULING
After consideration of the briefing filed and oral
argument at the hearing, Defendants ROK Drinks, Ltd. and ROK Stars PLC’s Motion
To Quash And Or Dismiss Orders For Judgment Debtor Examinations is GRANTED in
part and DENIED in part.
Pursuant to Los Angeles Superior Court Local Rule 3.221, subdivision (f), the Court orders this proceeding dismissed without costs awarded to Plaintiff Jeff Moses.
The Court DENIES the Motion as to service of the Application and Order for Appearance and Examination directed to “ROKIT STARS LIMITED (previously ROK STARS PLC) by its Director Jonathan Kendrick” filed on March 18, 2024.
The Court sets a Hearing on Application for Order for Appearance and Examination for ROK STARS PLC on April 3, 2025, at 8;30 a.m. in Department 19 of the Stanley Mosk Courthouse.
Counsel for Defendants ROK Drinks, Ltd. and ROK Stars PLC to give notice.
STATEMENT OF THE CASE
This case arises in breach of contract. Plaintiff Jeff Moses
(“Plaintiff” or “Judgment Creditor”)) brings suit against Defendants ROK
Drinks, Ltd. (“ROK Drinks”), ROK Stars PLC (“ROK Stars”), and Johnathan
Kendrick (collectively, “Defendants” or “Judgment Debtors”) alleging the following
causes of action in the Second Amended Complaint (“FAC”):
1. Breach
of Written Contract [against Rok Drinks and Rok Stars];
2. Breach
of Implied-In-Fact Contract [against Rok Drinks and Rok Stars];
3. Breach
of the Implied Covenant of Good Faith and Fair Dealing [against Rok Drinks and
Rok Stars];
4. Quantum
Valebant/Quasi-Contract [against Rok Drinks and Rok Stars];
5. Promissory
Estoppel [against all Defendants];
6. Fraud
[against all Defendants];
7. Negligent
Misrepresentation [against all Defendants];
8. Violation
Of Cal. Bus. & Prof. C. § 17200 Et Seq. [against all Defendants];
9. Intentional
Interference with Prospective Economic Relations [against all Defendants]; and
10. Negligent
Interference with Prospective Economic Advantage [against all Defendants].
Plaintiff alleges that Defendants refused to comply with their obligations to compensate Plaintiff for a trademark and other related assets.
After trial, a special verdict form (the “Special Verdict”) was returned by the jury.
On June 17, 2024, the “Amended Judgment In Favor of Defendant Jonathan Kendrick” was entered.
On June 17,
2024, the “Further Amended Judgement As To Plaintiff Jeff Moses And Defendants ROK
Drinks Ltd. (Now Named ROKIT Drinks Limited) And ROK Stars PLC. (Now Named ROKIT
Stars Limited)” was entered.
On July 29, 2024, Defendants filed their “¿Objections To Service Of Orders For Judgment Debtor Examinations And Request For Dismissal Of The Examinations Or Alternatively For Factual Hearings As Permitted By Local Rule” (hereafter, “Defendants’ Objections”).
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure sections 415.10, 684.030, 708.110, subdivision (d), and 708.150, and Los Angeles Superior Court Local Rule 3.221, subdivisions (b), (f), and (g), Defendants move for an ¿order quashing and/or dismissing the Court’s Orders to Appear for Examination on the ground that Plaintiff failed to personally serve the orders on Defendants at least thirty (30) days prior to the examinations, and made false representations of fact regarding the named Representative.
REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Defendants’ unopposed request to take judicial notice of Exhibits A and B. (Evid. Code, § 452(d), (h).)
However, the Court notes that it does not take judicial
notice of the truth of statements or their proper interpretation when the facts
are in dispute. (See Fremont Indem. Co. v. Fremont General Corp. (2007)
148 Cal.App.4th 97, 113-14 [“Taking judicial notice of a document is not the
same as accepting the truth of its contents or accepting a particular
interpretation of its meaning.”]; StorMedia Inc. v. Sup. Ct. (1999) 20
Cal.4th 449, 457 n. 9 [“When judicial notice is taken of a document ... the
truthfulness and proper interpretation of the document are disputable.”]; see
also Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134
[holding that judicial notice does not require acceptance of the truth of
factual matters that might be deduced therefrom].)
DISCUSSION
Code of Civil Procedure section 708.110 provides, in
relevant part:
(a) The judgment creditor may
apply to the proper court for an order requiring the judgment debtor to appear
before the court, or before a referee appointed by the court, at a time and
place specified in the order, to furnish information to aid in enforcement of
the money judgment.
[….]
(d) The judgment creditor shall
personally serve a copy of the order on the judgment debtor not less than 30
days before the date set for the examination. Service shall be made in the
manner specified in Section 415.10. Service of the order creates a lien on the
personal property of the judgment debtor for a period of one year from the date
of the order unless extended or sooner terminated by the court.
(Code Civ. Proc., § 708.110(a), (d).)
Los Angeles Superior Court Local Rule 3.221, subdivision
(b) provides that:
(1) After service of the notice and
application, proof of service of an order issued pursuant to Code of Civil
Procedure sections 708.110, 708.120, or 708.130 must be filed directly with the
clerk in the assigned department no later than 4:00 p.m., three court days
before the hearing date, unless otherwise ordered by the court.
(2) Failure to file proofs of service
will result in the proceeding being taken off calendar without costs awarded to
the applicant. No further hearing will be scheduled earlier than 120 days from
the date of the originally scheduled hearing, except for good cause shown in a
written declaration.
(LASC Local Rule, 3.221(b).)
Los Angeles Superior Court Local Rule 3.221, subdivision (f) provides that:
If the person ordered to appear denies
service of the order for appearance, the court shall conduct a hearing solely
to determine if proper service was made. The court may continue the examination
to permit any person to present evidence in support or in opposition to the
claim of non-service. If the court determines that service was not made, it may
dismiss the proceeding without costs awarded to the applicant.
(LASC Local Rule, 3.221(f).)
As an initial matter, the Court rejects Plaintiff’s suggestion that electronic service of the applications on Defendants’ counsel was sufficient. (See Opposition, p. 5, lines 2-16.)
Code of Civil Procedure section 684.020, subdivision (b) sets forth the requirements for service on an attorney rather than on a judgment debtor. Plaintiff’s evidence, (see Max Ambrose Decl., ¶¶ 6-7, Ex. A), does not establish that the requirements set forth in Code of Civil Procedure section 684.020, subdivision (b) have been met. For example, nothing has been filed with the Court and there is no indication that a request has been properly served and executed.
A. Defendant ROK Stars PLC [now ROKIT Stars Limited]
On March 18, 2024, Plaintiff filed an Application and Order for Appearance and Examination directed to “ROKIT STARS LIMITED (previously ROK STARS PLC) by its Director Jonathan Kendrick” and setting an examination date of August 13, 2024 (the “ROK Stars Application”)
On July 15, 2024, Plaintiff filed a proof of service indicating that the ROK Stars Application was served by mail to Mr. Kendrick at an address in the United Kingdom, as well as by eservice through One Legal and by electronic mail.
Plaintiff does not dispute that Defendant Rok Stars was not personally served with the ROK Stars Application but was instead served with the application by mail. (Opposition at p. 4.) Nonetheless, Plaintiff contends that such service by mail was proper, reasoning that Mr. Kendrick is located in the United Kingdom and therefore, pursuant to Code of Civil Procedure section 415.40, Plaintiff was permitted to serve the ROK Stars Application on Jonathan Kendrick “by first-class mail, postage prepaid, requiring a return receipt.”
The Court agrees with Plaintiff that he was permitted to serve the ROK Stars Application on Mr. Kendrick by way of mail in the manner prescribed by Code of Civil Procedure section 415.40.
Defendants do not dispute that Jonathan Kendrick is authorized to accept service on behalf of Defendant ROK Stars, or that Mr. Kendrick is a person located outside California. In the Motion, Defendants do not contend that Mr. Kendrick was not authorized to receive service on behalf of Defendant ROK Stars, or that Mr. Kendrick is a person located in California. (See Motion, pp. 3-6.)
Code of Civil Procedure section 708.110, subdivision (d) provides that “[t]he judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 30 days before the date set for the examination,” and that “[s]ervice shall be made in the manner specified in Section 415.10.” (Code Civ. Proc., § 708.110(d).)
Code of Civil Procedure section 684.110, subdivision (a)
provides that:
(a) (1) Subject to
subdivisions (b), (c), and (d), if legal process is required to be personally
served under this title, service shall be made in the same manner as a summons
is served under Chapter 4 (commencing with Section 413.10) of Title 5.
(2) For purposes of this title,
the term “legal process” shall refer to each and all of the writs, notices,
orders, or other papers required or permitted to be served pursuant to this
title.
(Code Civ. Proc., § 684.110(a).) (Code of Civil Procedure section 684.110, subdivisions (b), (c), and (d) are not applicable here.)
Thus, the Court finds that Plaintiff is permitted to serve the application on Defendant ROK Stars pursuant to Code of Civil Procedure section 415.40 as section 684.110 specifies that where process must be personally served, “service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.” (Code Civ. Proc., §§ 413.10(c), 684.110(a), 708.110(d); see Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1064-1067.)
Code of Civil Procedure section 415.40 (which is part of Title 5) provides that:
A summons may be served on a person outside
this state in any manner provided by this article or by sending a copy of
the summons and of the complaint to the person to be served by first-class
mail, postage prepaid, requiring a return receipt. Service of a summons by this
form of mail is deemed complete on the 10th day after such mailing. (emphasis
added.)
(Code Civ. Proc., § 415.40.)
The Court rejects Defendants’ reliance on Code of Civil Procedure section 1013 and Richards v. Miller (1980) 106 Cal.App.3d Supp. 13, (see Motion at p. 5), because Code of Civil Procedure section 415.40 provides that service “is deemed complete on the 10th day after such mailing,” (Code Civ. Proc., § 415.40), and Code of Civil Procedure section 1013 does not govern service of a summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. Richards involved service by mail of a noticed motion, not service of papers required to be served in the manner of service of a summons. (Richards, supra, 106 Cal.App.3d Supp. at 15-17.)
The proof of service filed on July 15, 2024 indicates that the ROK Stars Application was served “by First-Class Registered Mail on July 3, 2024, from San Diego, California” to the UK address listed for Mr. Kendrick “with return receipt requested.” Pursuant to Code of Civil Procedure section 415.40, service was deemed complete on the 10th day after such mailing, i.e., on July 13, 2024, which is thirty-one (31) days before the August 13, 2024 examination date. (See Code Civ. Proc., § 12c(a).)
Thus, for all the foregoing reasons, the Court finds, as argued by Plaintiff, that service of the ROK Stars Application was proper.
Accordingly, the Court DENIES the Motion as to the service of the ROK Stars Application on Defendant ROK Stars.
B. Defendant ROK Drinks PLC [now ROKIT Drinks Limited]
On March 18, 2024, Plaintiff filed an Application and Order for Appearance and Examination directed to “ROKIT DRINKS LIMITED (previously ROK DRINKS LTD.) by its Corporate Representative Russell Gillespie” and setting an examination date of August 15, 2024 (the “ROK Drinks Application”). As permitted by Code of Civil Procedure section 708.150, subdivision (b), the ROK Drinks Application designated Russell Gillespie as the person who is to appear at the examination on Defendant ROK Drink’s behalf, and indicates that he is Defendant ROK Drink’s “Corporate Representative.”
On March 27, 2024, Plaintiff filed a Proof of Personal Service indicating that Russell Gillespie was personally served with the ROK Drinks Application on March 24, 2024.
Defendants argue that the service was improper because “¿Mr. Gillespie disputes that he is either an agent for service or an ¿authorized representative of the Judgement Debtor,” and the Proof of Personal Service filed on March 27, 2024 lacks any “attestation or reference to him as an agent for any entity.” (Motion at pp. 3-5.)
Plaintiff argues that “¿ROK Drinks presents no evidence that he is not an agent of the Judgment Debtor,” (Opposition at p. 3), and cites to evidence that: (i) “¿Mr. Gillespie appeared as a corporate representative on behalf of both ROK entities for the entirety of their trials,” (id. (citing Ambrose Decl. at ¶ 5)); (ii) “¿Mr. Gillespie has declared under oath that ‘in the normal course of [his] duties, [he] provide[s] services to Rok Drinks, Rok Stars, and Jonathan Kendrick and ha[s] access to their records,” (id. (quoting Ambrose Decl. at Ex. F [Declaration of Russel Gillespie])); (iii) “¿Mr. Gillespie was produced by ROK Drinks and ROK Stars for a deposition in this BC718405 action, and was also present at ROK Drinks’ depositions as a corporate representative,” (id. (citing Ambrose Decl. at. Exs. G, F)); and (iv) during the deposition of Mr. Kendrick as Defendant ROK Drinks’s PMQ, which Mr. Gillespie attended, Mr. Kendrick “described Mr. Gillespie as ‘one of my colleagues at ROK,’ who helped him prepare for his PMQ deposition.” (Id. (quoting Ambrose Decl. at ¶ 5, Ex. H Tr. 3, 14:24-15:6).)
Yet, none of the evidence cited by Plaintiff establishes that Mr. Gillespie is an agent of Defendant ROK Drinks authorized to receive and accept service of the ROK Drinks Application on behalf of Defendant ROK Drinks. Plaintiff provides no legal authority to conclude that Defendant ROK Drinks has the burden to prove that Mr. Gillespie is an agent of Defendant ROK Drinks authorized to receive and accept service of the ROK Drinks Application on behalf of Defendant ROK Drinks. Rather, as the judgment creditor, Plaintiff is required to file proof of such service that withstands scutiny. (Code Civ. Proc., §§ 417.10, 684.210, 684.220; Los Angeles Superior Court Local Rule 3.221(b).)
The Court agrees with Defendants that the Proof of Personal Service filed on March 27, 2024 is insufficient to establish that the ROK Drinks Application was properly served on Defendant ROK Drinks.
The Court agrees with Defendants that “¿[t]he ‘Proof of Service’ filed on March 27, 2024 shows that the party served is ‘Russell Gillespie’, without any attestation or reference to him as an agent for any entity,” and that proof that the ROK Drinks Application was personally served on “Russell Gillespie’” is insufficient to establish that Defendant ROK Drinks was properly served with the ROK Drinks Application. (Code Civ. Proc., §§ 415.10, 416.10; id. at § 684.220 [“If service is made in the same manner as a summons is served under Section 415.10 or 415.20, proof of service may be made by affidavit… showing… facts showing that the service was made in accordance with the applicable statutory provisions. The affidavit shall recite or in other manner show the name of the person to whom the papers served were delivered and, if appropriate, the title of the person or the capacity in which the person was served.”]; id. at § 708.110 [“The judgment creditor shall personally serve a copy of the order on the judgment debtor….”]; see Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1437 [“a corporate defendant can only be served through service on some individual person” specified in section 416.10, and it must appear that the person served is in fact a person who may be served on behalf of the corporation]; Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163 (quoting Dill, supra, 24 Cal.App.4th at 1441-1442) [“The filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration ‘complies with the statutory requirements regarding such proofs.’”].)
The Court rejects Plaintiff’s suggestion, (Opposition at p. 3, lines 24-26), that indicating in the caption of the Proof of Personal Service filed on March 27, 2024 that “Rokit Drinks Limited” is the defendant in the action is sufficient to establish that Defendant ROK Drinks was properly served with the ROK Drinks Application.
Finally, the Court rejects Plaintiff’s argument that, by generally appearing in the action, Defendants waived any service defects. (See Opposition at pp. 4-6 (citing Code Civ. Proc., § 410.50(a); Li v. Yan (2016) 247 Cal.App.4th 56, 65; In re Poder's Estate (1969) 274 Cal.App.2d 786, 791; Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145; Alcalde v. NAC Real Estate Investments & Assignments, Inc. (C.D. Cal. 2008) 580 F.Supp.2d 969, n. 5.)
None of the legal authority cited by Plaintiff compels the conclusion that, by generally appearing in the action, Defendants waived any service defects. In Li v. Yan (2016) 247 Cal.App.4th 56, which concerned a judgment entered for a client for professional negligence and related claims against attorney, the Court of Appeal held that the attorney waived any claimed jurisdictional defect in the client's failure to serve the attorney personally with a postjudgment subpoena duces tecum to produce documents for a judgment debtor examination because the attorney failed to object to the service in the trial court before appearing and being examined twice. (Id. at 59, 65.) Here, in contrast, Defendants object to the purported improper service and have not yet appeared to be examined. Similarly, Alcalde involved a finding of waiver of objections to discovery requests where the judgment debtor failed to object. (Alcalde, supra, 580 F.Supp.2d at 972.)
In re Poder's Estate (1969) 274 Cal.App.2d 786 and Fireman's Fund Ins. Co.
v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135 did not
involve a judgment debtor’s examination and do not compel the conclusion that
the service requirements set forth in Code of Civil Procedure section 708.110,
subdivision (d) do not apply if judgment debtors have generally appeared in the
action. Nor does Code of Civil Procedure section 410.50 compel the conclusion
that the statutory requirements for service of the application are not
applicable or need not be complied with where the judgment debtor has appeared
in the action.