Judge: Stephen P. Pfahler, Case: 21STCV37556, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV37556    Hearing Date: August 17, 2022    Dept: F49

Dept. F-49

Date: 8-17-22

Case #21STCV37556 (lead case) related to 22VEUD00174

Trial Date: Not Set

QUASH

MOVING PARTY: Defendant, 5975-5999 Topanga Canyon Blvd., et al.

RESPONDING PARTY: Plaintiffs, Woodland Hills Medical Clinic II, Inc., et al.

RELIEF REQUESTED

Motions to Quash Service of Summons/Phantom Summons

SUMMARY OF ACTION

On October 12, 2021, Plaintiffs and Hamid Mirshojae and Woodland Hills Medical Clinic II, Inc. filed a complaint for Breach of Settlement Agreement, Implied Contractual Indemnity, and Breach of Lease against Ahang Mirshojae and 5975-5999 Topanga Canyon Blvd. The subject complaint arises following three separate preceding cases: a January 9, 2017 filed action, Woodland Hills Medical Clinic II, Inc., et al. v. Zelk, et al. (LC105050), a February 3, 2017 and 5975-5999 Topanga Canyon Blvd., et al. v. Zelk, et al. (LC105208), and a March 13, 2019 action, Yadegar v. Woodland Hills Medical Clinic, et al. (19CHCV00214). The LC105208 and LC105050 settled at least in part under an alleged condition that the Ahang, et al. parties “obtain a release” on the 19CHCV00214 action, execute two deeds of trust, as well allowing the clinic to occupy the top floor of the building and parking spaces for business operations. Notwithstanding the agreement, Plaintiffs allege, Ahang, et al. continue to “orchestrate” litigation on the action in order to “extort money from and harass,” and refusal to “approve and sign” the replacement deeds of trust in order to “rectify the defects.” Plaintiffs also dispute the return of certain property belonging to both the business entity and individual. Plaintiffs also allege Defendants refuse to allow the use of the unoccupied top floor or parking spaces “for nefarious reasons.”

On February 24, 2022, Plaintiff 5975-5999 Topanga Canyon Blvd. filed a complaint for unlawful detainer against Defendant, Woodland Hills Medical Clinic II, Inc.

A notice of related cases was filed with 21STCV37556. On March 17, 2022, the court deemed 22VEUD00174 and 21STCV37556 related, thereby leading to the assignment of all cases to Department 47. On March 21, 2022, Plaintiff filed a peremptory challenge, thereby leading to the reassignment of the case to Department 49 on March 22, 2022. On March 28, 2022, the court specially set a motion for reconsideration challenging the preemptory reassignment from Department 47. The motion for reconsideration was denied on June 2, 2022, and the action therefore remains assigned to Department 49.

On June 9, 2022, the court sustained the demurrer to the unlawful detainer action with 15 days leave to amend. The UD plaintiffs filed their first amended complaint on June 23, 2022.

RULING: Denied.

Defendants Ahang Mirshojae and 5975-5999 Topanga Canyon Blvd. filed two motions to quash both the summons and “phantom” summons on the complaint. Because both motions substantively seek the same relief, the court consolidates the ruling into a single order.

Defendants move for relief on grounds that the court lacks subject matter jurisdiction, due to the prior settlement agreement, which requires Plaintiff to seek enforcement via the terms of the agreement. Defendants also deny any general appearance in the action in opposing the ex parte application for temporary restraining order, and represent only a special appearance.

Plaintiff in opposition contends the summons and complaint were properly served and that Defendants generally appeared in the action upon opposing the ex parte motion for temporary restraining order. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

The December 2, 2021 filed opposition to the motion for temporary restraining order states that appears in the action without any indication of a special appearance. The December 3, 2021, minute order also shows no such reservation of special appearance only. “A defendant appears in an action when … an attorney gives notice of appearance for the defendant.” (Code Civ. Proc., § 1014.) Even if the court allowed 5975-5999 Topanga Canyon Blvd. to retroactively clarify that it only intended to make a special appearance, the court finds insufficient support. “‘“What is determinative is whether [the] defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.”’” (Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 125; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229 [While in personam jurisdiction over defendant depends upon valid service and demonstration of minimum contacts, the trial court's jurisdiction to determine jurisdiction arises from the act of service of the complaint and summons and from defendant's special appearance in the action to compel preliminary determination of jurisdictional issues].) The submitted opposition on the ex parte in fact substantively addresses the terms of the lease and rights of the parties, with no mention of a lack of jurisdiction. Such argument clearly and unequivocally demonstrates a submission on the merits of the motion, and therefore a general appearance no matter the representation of counsel. Because 5975-5999 Topanga Canyon Blvd. filed the motion to quash four days after the opposition and three days  after the ex parte order, 5975-5999 Topanga Canyon Blvd. waived any jurisdiction challenges. (Code Civ. Proc., § 418.10, subd. (e).)

The motion is therefore denied as to 5975-5999 Topanga Canyon Blvd. Defendant Ahang Mirshojae was not an appearing party to the ex parte motion. The court therefore considers the subsequent conduct of Ahang Mirshojae in the action.

On December 14, 2021, both defendants filed a 170.6 challenge to Department 86, which was granted. Given the lack of an appearance on the ex parte by Ahang Mirshojae, it was possible for Ahang Mirshojae to file the 170.6 without making a prior appearance.

“A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee. … If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance.  …”

(Code Civ. Proc., § 170.6, subd. (a)(2).)

The filing and acceptance of the 170.6, however, constituted an appearance by Ahang Mirshojae. The plain language of the statute renders the presentation and resulting ruling on the submission a general appearance. The ruling and reassignment of courtrooms pursuant to the 170.6 could NOT have been accomplished at the request of Ahang Mirshojae without the submission to the court’s general jurisdiction regarding an issue on how the court will proceed in the adjudication of the matter. (Sunrise Financial, LLC v. Superior Court, supra, 32 Cal.App.5th at p. 125.) “By determining the statute requires defendants who are parties to a noncomplex-case transfer/consolidation motion to file their peremptory challenge when they make a general appearance in the department of the judge assigned for all purposes, we have assured that litigants retain a full opportunity to assert their peremptory challenge and maintain their right to a fair and impartial adjudicator, while at the same time reducing the possibility of unnecessary delays and waste of judicial resources.” (Id., at p. 130.)

The law and circumstances of the case support the finding of a general appearance. The sought after result of granting the motion to quash but leaving the 170.6 challenge in place would constitute an absurd result. The court declines to nullify service after the 170.6 rendered appearance. The motion is therefore denied as to Ahang Mirshojae.

The court also notes a second 170.6 challenge by Defendants filed on January 14, 2022 and the March 7, 2022 motion to disqualify as well. Both constitute further evidence of a general appearance and waiver of jurisdiction, even if said items are redundant for purposes of the subject motion.

The motions are therefore denied in their entirety.  Defendants are ordered to file their responsive pleadings within 30 days from the date of this order.

Three additional discovery motion on calendar from August 30 to September 30, 2022.

Defendants to give notice.