Judge Thomas S. Mcconville, Case 2020-01161695 2023-05-15 Tentative Ruling

Judge: Thomas S. Mcconville, Case: 2020-01161695, Date: 2023-05-15 Tentative Ruling

Two different defendants, Shi Che and Zhiyuan Che, have filed motions on calendar today. The motions are addressed in turn below.

Motion by defendant Shi Che

The motion to quash service of summons and dismiss action by defendant Shi Che, specially appearing, is GRANTED. (Code Civ. Proc., § 418.10 [authorizing motion].)

Plaintiff does not contend general jurisdiction exists, and fails to provide sufficient evidence to support specific jurisdiction. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710 [plaintiff’s burden]; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446-448 [elements of specific jurisdiction]; Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 [“contract with an out-of-state party does not automatically establish purposeful availment in the other party's home forum … [r]ather, a court must evaluate the contract terms and the surrounding circumstances to determine whether the defendant purposefully established minimum contacts within the forum”].) The court finds that moving defendant’s negotiation of a loan agreement between plaintiff and defendant Shandong Oriental Ocean Group Co. Ltd., without more, is insufficient to establish purposeful availment. (Goehring v. Superior Court, supra [purposeful availment factors]; see also Long v. Mishicot Modern Dairy, Inc. (1967) 252 Cal.App.2d 425, 428 [ownership of property in California generally insufficient to confer personal jurisdiction, absent some connection between the property and plaintiff’s claims].)

Plaintiff’s request for judicial notice is GRANTED as to Item Nos. Nos. 2, 3, and 5-7, limited to the fact that the documents were filed and/or recorded, not of the truth of their contents. (Evid. Code, § 452, subd. (d) [court records]; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [judicial notice of public records and limitations thereon]; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7 [limitations on judicial notice of court records].) The remainder of plaintiff’s request for judicial notice is DENIED. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [judicial notice may be taken of existence of government website but not its contents].)

Motions by defendant Zhiyuan Che

The motions to vacate default and quash service of summons and dismiss by defendant Zhiyuan Che, specially appearing, are GRANTED.

The court orders that the 9-7-22 default against this moving defendant is set aside. (Code Civ. Proc., § 473, subd. (d) [authorizing relief from void default]; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229 [proper service of summons required in order for court to obtain jurisdiction]; Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 [lack of personal jurisdiction renders default void].) Moving party has shown that the substituted service at the offices of former defendant Avioq, Inc. is insufficient under Code Civ. Proc., § 415.20, subd. (b), as that is not his “usual place of business.” (Zhiyuan Che Decl., ¶ 2.) Further, the court finds that the single service attempt on 7-22-22, prior to substituted service on 7-28-22, does not constitute “reasonable diligence.” This is particularly true where the process server has been advised that defendant is not at that location and not affiliated with that business, and that the recipient is not authorized to accept service, as is the case here. (Code Civ. Proc., § 415.20, subd. (b) [requiring “reasonable diligence” prior to substituted service]; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750, citing American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389 [“Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence’”]; see also “Affidavit of Due and Diligent Attempt” attached to proof of service.)

As to quashing service of summons and dismissal (Code Civ. Proc., § 418.10 [authorizing motion]) , plaintiff does not contend general jurisdiction exists, and fails to provide sufficient evidence to support specific jurisdiction. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710 [plaintiff’s burden]; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446-448 [elements of specific jurisdiction]; Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 [“contract with an out-of-state party does not automatically establish purposeful availment in the other party's home forum … [r]ather, a court must evaluate the contract terms and the surrounding circumstances to determine whether the defendant purposefully established minimum contacts within the forum”].) The court finds that moving defendant’s receipt of proceeds of a loan between plaintiff and defendant Shandong Oriental Ocean Group Co. Ltd., and/or interest payments thereon, without more, is insufficient to establish purposeful availment. (Goehring v. Superior Court, supra [purposeful availment factors]; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1321 [payments to and from Florida insurer to California residents insufficient to confer personal jurisdiction]; Long v. Mishicot Modern Dairy, Inc. (1967) 252 Cal.App.2d 425, 428 [ownership of property in California generally insufficient to confer personal jurisdiction, absent some connection between the property and plaintiff’s claims].

Moving parties shall give notice.