Judge Stephen I. Goorvitch, Case Number: 25STCV00050, Date: 2025-01-31 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 25STCV00050, Date: 2025-01-31 Tentative Ruling

Case Number: 25STCV00050 Hearing Date: January 31, 2025 Dept: 82

Afshin Jafari v. Roberta Rodrigues Quintanilha Ferreira

Case No. 25STCV00050

[Tentative] Order on Application for Preliminary Injunction

Plaintiff Afshin Jafari (“Plaintiff”) filed this action against Defendant Roberta Rodrigues Quintanilha Ferreira (“Defendant”) for promissory fraud, breach of contract, and other claims. On January 10, 2025, the court (Kin, J.) granted Plaintiff’s ex parte application for a temporary restraining order (“TRO”) and order to show cause (“OSC”) re: issuance of a preliminary injunction. The TRO enjoins Defendant, pending a hearing on the OSC, from withdrawing, transferring, disposing, investing, or spending the $100,000 that Plaintiff conveyed to Defendant for the benefit of Nominal Defendant 31 Brazilian Jiu Jitsu, Inc. (“31 BJJ”). The OSC directed Plaintiff to serve the moving papers, any supplemental papers, the summons and complaint, and the court’s order upon Defendant “by personal service (or other service authorized by statute or agreed to in writing by the parties) by January 13, 2025.” No opposition has been filed.

The dispositive issue is whether Plaintiff completed service of the moving papers, the summons and complaint, and the court’s order on or before January 13, 2025. On January 9, 2025, via email, and on January 10, 2025, at the ex parte hearing, Defendant informed Plaintiff’s counsel that she would be leaving the country on January 10, 2025 (after the hearing) and would return on January 29, 2025. Defendant requested that Plaintiff agree to a continuance of the matter so that she could “find representation.” (Murphy Decl. filed January 21, 2025 (“Murphy Decl.”) ¶ 3, Exh. A.) At the hearing, Plaintiff’s counsel immediately emailed Defendant, asking if she would accept service by email. Defendant did not respond to this email. (Id. ¶ 7, Exh. C.) Thereafter, on January 11 and 12, 2025, Plaintiff’s process servers unsuccessfully attempted to serve the moving papers, the summons and complaint, and the court’s order by personal service on Defenant, both at her residence in Pacifica and at a business address in San Francisco. (Id. ¶¶ 9-10, Exh. E.) On January 13, 2025, Plaintiff served the moving papers, the summons and complaint, and the court’s order by substitute service. (Id. ¶ 11 and Proof of Service filed January 21, 2025.)

Code of Civil Procedure section 527(d) provides in pertinent part: “The party who obtained the temporary restraining order shall, within five days from the date the temporary restraining order is issued or two days prior to the hearing, whichever is earlier, serve on the opposing party a copy of the complaint if not previously served, the order to show cause stating the date, time, and place of the hearing, any affidavits to be used in the application, and a copy of the points and authorities in support of the application.” (Code Civ. Proc. § 527(d)(2).) “When the matter first comes up for hearing, … if the party has failed to effect service as required by paragraph (2), the court shall dissolve the temporary restraining order.” (Code Civ. Proc. § 527(d)(3).) However, “[u]pon the filing of an affidavit by the applicant that the opposing party could not be served within the time required by paragraph (2), the court may reissue any temporary restraining order previously issued. The reissued order shall be made returnable as provided by paragraph (1), with the time for hearing measured from the date of reissuance.” (Code Civ. Proc. § 527(d)(5).) In addition, “[t]he opposing party is entitled to one continuance for a reasonable period of not less than 15 days or any shorter period requested by the opposing party, to enable the opposing party to meet the application for a preliminary injunction.” (Code Civ. Proc. § 527(d)(4).)

Generally, in California, there are four basic methods of serving a summons and complaint: (1) personal delivery to the defendant; (2) substitute service; (3) service by mail coupled with acknowledgment of receipt; or (4) service by publication. (See CCP §§ 415.10, 415.20, 415.30, 415.50; see Crane v. Dolihite (2021) 70 Cal.App.5th 772, 786.) While substitute service is an authorized method of service, it is not deemed complete until 10 days after the mailing. (Code Civ. Proc. § 415.20(a), (b).) Plaintiff’s process server mailed the documents to Defendant on January 13, 2025. (Murphy Decl. ¶ 11 and Proof of Service filed January 21, 2025.) Thus, service will not be complete until January 23, 2025, after the deadline of January 13, 2025, set in the OSC and after the time specified in section 527(d)(2).

The court interprets the declaration of Kevin Murphy filed January 21, 2025, as a request to reissue the TRO and continue the hearing on the OSC pursuant to section 527(d)(5). In his declaration, Murphy adequately explains why Plaintiff could not complete service by January 31, 2025. Accordingly, the request to reissue the TRO and continue the hearing on the OSC is granted.

Based upon the foregoing, the court orders as follows:

1. The request to reissue the TRO and continue the hearing on the OSC is granted.

2. The moving papers, the summons and complaint, and the court’s order shall be served on or before February 3, 2025.

3. The proof of service shall be filed on or before February 10, 2025.

4. Any opposition shall be filed and served on or before February 13, 2025.

5. Any reply shall be filed and served on or before February 18, 2025.

6. the hearing on the order to show cause re: preliminary injunction shall be filed and served on or before February 21, 2025.

7. Plaintiff’s counsel shall provide notice and file proof of service with the court.