Judge: Thomas S. Mcconville, Case: 2022-01281968, Date: 2023-05-22 Tentative Ruling
There are two motions on the court’s calendar: (1) Defendants’ Marc Lazo and K&L Law Group’s Motion to quash service of summons; and (2) Plaintiffs’ motion for preliminary injunction. These are addressed in turn below.
(1) Motion to Quash
The Motion to Quash brought by Specially Appearing Defendants Marc Y. Lazo and K&L Law Group, P.C. is GRANTED. The Court quashes the service of the summons and complaint which occurred on September 29, 2022 and September 30, 2022, as reflected in ROA Nos. 11, 12, 45, 46, 51 and 52. The Court notes, however, that it is not addressing the sufficiency of service completed on April 18, 2023. (ROA Nos. 169 and 170.)
Pursuant to C.C.P. §418.10(a)(1), a Defendant may, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, serve and file a notice of motion to quash service of summons, on the ground of lack of jurisdiction. (C.C.P. §418.10(a)(1).) Such a motion does not constitute a general appearance. (C.C.P. §418.10(d)).
“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant....When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service....” (Floveyor Inernat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793). “The burden must be met by competent evidence in affidavits and authenticated documents.” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203.)
As noted by Defendants, the Proofs of Service filed on October 12, 2022, indicate Defendants were served via substituted service on “Ebru Suzer, The UPS Store Manager” at “2646 Dupont Dr., Suite 60, Irvine, CA 92612.” (ROA Nos. 11 and 12.) Defendants challenge this service on the basis the identified address is incorrect. While Defendants do not address their correct address within the accompanying Declaration from Marc Lazo, the Motion itself indicates “the proper mailing address of K&L… is: 2646 Dupont Dr., Suite 60340, Irvine, CA 92612…” (Motion: 6:10-12.) Additionally, Plaintiffs concede that an independent search showed that “2646 Dupont Drive, Suite 60340, Irvine, CA 92612 is the mailing address for Lazo/K&L…” (¶6 of Jennifer Young Declaration.)
Additional Proofs of Service were filed by Plaintiffs on November 14, 2022, November 21, 2022 and November 22, 2022; however, all of these Proofs of Service list the same address of service: “2646 Dupont Drive, Suite 60, Irvine, CA 92612.” (ROA Nos. 45, 46, 51 and 52, at ¶4.)
While Plaintiffs concede that Defendants’ correct mailing address is “Suite 60340,” they assert that Defendants do not have a physical address. (¶3 of Jennifer Young Declaration.) Per Plaintiff Jennifer Young, she attempted to locate Suite 60340 on one occasion and was unable to do so. (¶5 of Jennifer Young Declaration.) Plaintiff declares that “[a] nice lady who had office in the Plaza also walked with me to look for the suite number.” (Id.) “She then realized that the UPS store might have the information. This is how I discovered that Lazo didn’t have a physical office and Lazo’s [s]uite number is actually the UPS store’s box number.” (Id.) Defendants do not dispute the above Declaration and offer no Declarations themselves, which address whether a physical office exists for “Suite 60340.”
The Proofs of Service filed on November 14, 2022, indicate in attached Declarations of Reasonable Diligence that: “The UPS store manager Ebru Suzer verified the names and the suite number on the envelop[e] and accepted the documents, and agreed [t]o give the documents to suite 60340.” (ROA Nos. 45 and 46.) The Proofs of Service filed on November 21, 2022 and November 22, 2022 mirror the above, but include an additional statement in the Declarations of Diligence specifying: “A copy of both the Summons and the First Amended Complaint were mailed by First Class Mail to K&L Law Group and Marc Y. Lazo at 2646 Dupont Drive, Suite 60340, Invite (sic), CA 92622.” (ROA Nos. 51 and 52 [emphasis added].)
While Plaintiff Jennifer Young declares that the process server mailed the relevant documents to “2646 Dupont Drive, Suite 60340, Irvine, CA 92612 on September 30, 2022,” (¶8 of Jennifer Young Declaration), she establishes no personal knowledge of the same and her statement differs from the Proofs of Service themselves, which list the City as “Invite.”
While it is arguable that service on the UPS store manager constituted service on a “person who is apparently in charge” of Defendant’s “usual mailing address,” (C.C.P. §415.20(a) and (b)), service was nonetheless defective, as the Proofs of Service do not demonstrate mailing on the address the parties agree is Defendant’s “usual mailing address.”
The Court notes that additional Proofs of Service were filed on April 21, 2023, which indicate substituted service on April 18, 2023, on Defendants at 25011 Farrier Cir., Laguna Hills, CA 92653. (ROA Nos. 169 and 170.) The Court declines to consider the sufficiency of this service, at this time. Within the Reply, Defendants deny that service has occurred, but thereafter assert this service is “not relevant to the matter before this Court relative to the instant Motion.” (Reply: 2:18-21). By asserting service in April is irrelevant to this motion, Defendants concede they are challenging only the service which purportedly occurred in September of 2022.
Defendants’ Request for Judicial Notice is GRANTED, pursuant to Evidence Code §452(d).
Specially appearing defendants shall give notice.
(2) Motion for Preliminary Injunction
The Motion for Preliminary Injunction brought by Plaintiffs William Young and Jennifer Young is DENIED.
Initially, as noted by Defendants, Plaintiffs are requesting this court enjoin the enforcement of orders previously issued by Judge Griffin. Specifically, Plaintiffs seek to enjoin Defendant from collecting attorneys’ fees awarded against them in Young v. Byars (Case No. 2017-00924659). (See; ¶32, ¶40-¶42 and ¶46 of Jennifer Young Declaration.) Additionally, Plaintiffs request an order “enjoining Collect Co. from garnishing Jack McIntyre’s wages” (Motion: 20:20-21), which appears to be a reference to collection efforts taking place in Young v. Byars (Case No. 2017-00924659).
Any request to enjoin orders issued from another court must be denied. “When two or more tribunals in this state have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the action might have been initiated.” (Scott v. Industrial Acc. Commission (1956) 46 Cal.2d 76, 81.) “Thereafter another tribunal, although it might originally have taken jurisdiction, may be restrained by prohibition if it attempts to proceed.” (Id.). “One reason for the rule is to avoid unseemly conflict between courts that might arise if they were free to make contradictory decisions or awards at the same time or relating to the same controversy; another reason is to protect litigants from the expense and harassment of multiple litigation.” (Id. at 81-82.)
Based on the above rule, “no proceeding to enjoin the execution of an order or judgment of one court may be brought in a court of co-ordinate jurisdiction, but any relief must be sought in the court whose order or command is involved.” (Wright v. Superior Court in and for Calaveras County (1941) 43 Cal.App.2d 181, 183.) Similarly, “it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned.” (Williams v. Superior Court in and for Los Angeles County (1939) 14 Cal.2d 656, 662.) Stated another way, “the plaintiffs could obtain the most ample relief in the Court whose proceedings they wished to restrain; and there was no reason for seeking another tribunal, possessing only the same powers.” (Rickett v. Johnson (1857) 8 Cal.34, 36.)
Based on these authorities, this Department cannot interfere with the orders issued by Judge Griffin, permitting collections within Young v. Byars (Case No. 2017-00924659).
Additionally, while Plaintiffs generally request an order enjoining Defendant from collecting on any of “Plaintiffs’ Judgments,” language which may reference conduct outside of just Young v. Byars (Case No. 2017-00924659), Plaintiffs have failed to demonstrate a probability of prevailing on any claim.
Pursuant to C.C.P. §526(a)(1), an injunction may be granted “[w]hen it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.”
A trial court’s determination must be guided by a “mix” of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678). “Of course, the scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.” (Id.). “A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the Plaintiff would ultimately prevail on the merits of the claim.” (Id.).
The burden is on the party seeking the injunction to show all elements necessary to support its issuance. (O'Connel v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)
Within this action, Plaintiffs assert several claims for fraud, along with claims for breach of contract and financial elder abuse. (See FAC [ROA No. 6.]) Within this motion, Plaintiffs indicate they are likely to prevail on the merits as “the fraud happened quickly by Lazo’s connecting Plaintiffs with Ali Ammar through email without disclosing Ali Ammar was a third party” and “Ali Ammar disguised himself as part of Lazo’s TEAM.” (Motion: 18:9-12.) Thereafter, Plaintiffs assert that “[s]ince Collect Co has failed to or is unable to provide evidentiary facts or to show cause that the Client Agreement and Assignment Agreement were properly entered, they should be restrained from any collection activities, until the validity of the agreements are tried.” (Motion: 19:2-5.)
Plaintiffs suggest they will prevail on one of their fraud claims and that, as a result, certain contracts will be set aside. Plaintiffs do not, however, cite any authority which supports their assertion. Indeed, Plaintiffs do not identify the elements of their claims nor offer specific citations to the evidence they assert establishes each element of the same.
The Court is not required to organize Plaintiffs’ evidence for them or to construct legal arguments on their behalf. “We are not required to search the record to ascertain whether it contains support for [Plaintiffs] contentions.” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
In addition, the facts asserted in Plaintiffs’ motion do not support a claim for fraud. With respect to Defendant Collect Co. (the party sought to be enjoined), Plaintiffs assert that “Ali Ammar failed to disclose he was a third party,” in certain communications with Plaintiffs. (Motion: 4:3-5.) Plaintiffs are implying Defendant fraudulently concealed his identity; however, a required element of fraudulent concealment is that “the defendant must have been under a duty to disclose the fact to the plaintiff.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248). Plaintiffs do not identify any duty on the part of this Defendant, to clarify his relationship with Lazo. Additionally, while Plaintiff Jennifer Young declares that “Ali Ammar…disguised himself like Lazo’s TEAM staff,” (¶9 of Jennifer Young Declaration), the email communication from Ali Ammar attached to the Young Declaration is clearly labelled as a communication from Collect Co. (¶8 of Jennifer Young Declaration and Exhibit Two thereto.) Plaintiffs do not identify any misrepresentations within this email communication.
Plaintiffs also concede they signed documents without reading them. Plaintiffs do not declare that they were prevented from reading or reviewing the documents they signed. Additionally, while Mrs. Young declares that “my husband and I have never signed any Client Agreement” and that “Ali Ammar/ Collect Co pasted our signatures on the Client Agreement,” these statements are contrary to their admissions. (¶14 of Young Declaration.) Plaintiffs repeatedly concede executing the document attached and referred to by Defendant as a “Judgment Agreement.” (¶9 and ¶13 of Jennifer Young Declaration.)
Additionally, despite Defendants’ alleged mis-labeling of the documents in email communications, a review of the documents themselves demonstrates that their content is clear: The document which Plaintiff Young declares Defendant called a “Judgment Agreement” and which is attached as Exhibit Three to the Jennifer Young Declaration is in fact clearly labelled as a “Client Agreement” between William and Jennifer Young (“Client”), on the one hand, and Collect Co. (“COCO”), on the other. (¶14 of Jennifer Young Declaration and Exhibit Three thereto.) Moreover, the document indicates that “Client shall irrevocably assign all the judgments listed on the below Schedule A to COCO within 7 days after the date of this Agreement.” (Id.) The Agreement thereafter clearly identifies five separate judgments. (Id.)
Similarly, the “Acknowledgment of Assignment of Judgment” which Plaintiffs declare Defendant referred to as a “Court Form,” is likewise clear. (¶17 of Jennifer Young Declaration and Exhibit Five thereto.) This document states: “For a valuable consideration, receipt of which is hereby acknowledged, William Young and Jennifer Young does hereby irrevocably grant and assign to Collect Co all right, title, and interest in the $91,217.00 judgment entered in the above entitled case on January 22, 2018.” (Id.) Plaintiffs concede having signed and notarized this document. (¶18 of Young Declaration.)
“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-231)
Here, Plaintiffs have not established a clear misrepresentation nor justified reliance thereon. As explained by the California Supreme Court in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, “California law, like the Restatement, requires that the plaintiff, in failing to acquaint himself or herself with the contents of a written agreement before signing it, not have acted in an objectively unreasonable manner.” (Id. at 423.)
Similarly, “[i]t is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.” (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.)
Within the Reply, Plaintiffs note that an essential element of a contract is consent to the agreement. (Reply: 7:18-20; See also Civil Code §1550.) Thereafter, Plaintiffs assert that there was no “meeting of the minds” as they “never knowingly and willingly signed anything for Collect Co.” (Reply: 8:1-11.) This argument fails, however, as “[i]n the absence of fraud, mistake, or another vitiating factor, a signature on a written contract is an objective manifestation of assent to the terms set forth there.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789.) As indicated above, Plaintiffs herein have not sufficiently challenged the validity of their signatures on the relevant agreements and, moreover, have not demonstrated fraud.
Based on all of the above, the motion for preliminary injunction is DENIED.
Defendants’ Request for Judicial Notice is DENIED, for failure to comply with Evidence Code §453(b) and California Rules of Court Rule 3.1306(c)(1). Pursuant to Evidence Code §453(b), judicial notice is required only where the requesting party “[f]urnishes the court with sufficient information to enable it to take judicial notice of the matter.” Additionally, pursuant to California Rules of Court, Rule 3.1306(c)(1), where the relevant material is part of a file in the court, the requesting party must “[s]pecify in writing the part of the court file sought to be judicially noticed.” (CRC 3.1306(c)(1). Here, Defendants’ vague request that the Court take judicial notice “of all documents filed” in Young v. Byars (Case No. 2017-00924659) is insufficient to meet the above standard.
Defendants shall give notice.