Judge: Stephen I. Goorvitch, Case: 23STCV13034, Date: 2024-01-11 Tentative Ruling

Case Number: 23STCV13034    Hearing Date: January 11, 2024    Dept: 39

Amr Samaha v. Sukthankar Capital, LLC, et al., Case No. 23STCV13034

Plaintiff obtained defaults against Sukthankar Capital, LLC and Sukthankar Holdings Group, LLC on December 7, 2023.  Plaintiff served Nvest Ventures, LLC on October 4, 2023, and Mihir Sukthankar on October 21, 2023.  Now, Plaintiff moves ex parte for an order “to deem substituted service on Defendant Mihir Sukthankar proper and complete.”  Defendant Mihir Sukthankar has not appeared in this case, and Plaintiff’s counsel did not serve the ex parte application on Defendant Mihir Sukthankar. 

Plaintiff’s counsel cites no authority suggesting that the Court may prospectively deem service to have been proper before any defendant has appeared in the case.  Nor does Plaintiff’s counsel cite any authority suggesting that the Court may grant an ex parte application that was not served on the affected party.  These defects are fatal to Plaintiff’s application. 

Nor is this application necessary at this stage.  Service is presumed to have been proper, and the Court will resolve the issue if/when Defendant Mihir Sukthankar moves to set aside any default/default judgment based upon allegedly ineffective service.  Were the Court to grant this application, there would be a due process violation.  Effectively, the Court would be making a finding that service was proper—thereby foreclosing any motion by Defendant Mihir Sukthankar to set aside default/default judgment on this ground—without giving Defendant Mihir Sukthankar notice and an opportunity to challenge the finding.  This Court may not render a decision that affects Defendant Mihir Sukthankar’s rights without giving notice and an opportunity to be heard on the issue.    

Based upon the foregoing, the Court rules as follows:

1.       Plaintiff’s ex parte application is denied without prejudice.  Plaintiff’s counsel may re-file this application if he serves the application upon Defendant Mihir Sukthankar and cites authority establishing that the Court may prospectively deem service to have been proper before the defendant files a motion to set aside default/default judgment.   

2.       Plaintiff’s service of Mihir Sukthankar is presumed to be proper for purposes of seeking entry of default and default judgment. This order is without prejudice to Defendant Mihir Sukthankar filing a motion to set aside default/default judgment based upon improper service, at which point the Court will resolve this issue.

3.       Plaintiff’s counsel shall provide notice and file proof of such with the Court.