Judge: Wesley L. Hsu, Case: 22PSCV01642, Date: 2023-05-11 Tentative Ruling
Case Number: 22PSCV01642 Hearing Date: May 11, 2023 Dept: L
Specially Appearing Defendant Mikhail Cheban’s Motion to
Quash Service of Summons is GRANTED.
Background
Plaintiff U.S. Bank National Association dba U.S. Bank Equipment Finance (“Plaintiff”) alleges as follows:
On August 1, 2016, Connext Financial,
Ltd. (“Connext”) entered into a written lease agreement (“Lease”) with Whittier
Enterprise, LLC (“Whittier Enterprise”). Igor Cherdak (“Cherdak”) and Mikhail
Cebgan (“Cheban”) guaranteed Whittier Enterprise’s performance of the Lease.
SSRE Holdings LLC dba Signature Fresh (“SSRE”) assumed Whittier Enterprises’
obligations under the Lease via an Assumption Agreement dated October 22, 2020.
Connext assigned all of its right, title and interest in the Lease via a
Private Label Program and Master Assignment Agreement dated November 15, 2007 (“Program
Agreement”). SSRE failed to pay obligations under the Lease when due.
On November 3, 2022, Plaintiff filed a complaint, asserting a cause of action against SSRE, Cherdak, Cheban and Does 1-5 for:
1.
Breach of Contract
On December 19, 2022, Cherdak filed a cross-complaint, asserting causes of action against SSRE, Cheban and Roes 1-5 for:
1.
Implied Equitable Indemnity
2.
Implied Contractual Indemnity
3.
Comparative Contribution
On January 9, 2023, SSRE’s default was entered on the complaint.
A Case Management Conference is set for May 11, 2023.
Legal Standard
“A defendant, 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, may serve and file a notice of motion. . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her. . .” (Code Civ. Proc., § 418.10, subd (a)(1).)
“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [quotation marks and citation omitted].)
Discussion
Cheban specially appears and moves the court for an order quashing service of the summons and complaint on the basis of improper service.
Evidentiary Objections
The court rules on Cheban’s evidentiary objections as follows:
--As to
Brenda O’Toole Declaration: Overruled as to Nos. 1-6
Merits
Code of Civil Procedure § 415.20, subdivision (b) governs the requirements for substitute service in this instance and provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Cheban’s counsel Gregory Bodell (“Bodell”) represents that a copy of the proof of service as to Cheban is attached as Exhibit 1 to his declaration; it is not. Regardless, court records reflect that on November 16, 2022, Plaintiff filed a proof of service which reflected that “Jane Doe” had been substitute served with the summons and complaint for Cheban on November 13, 2022, 9:24 a.m., at 2029 Sunset Plaza Dr, West Hollywood, CA 90069 (“Sunset Plaza Address”)
Cheban attests that, while he is an owner of the Sunset Plaza Address, he has not lived or resided there since July 2018, when he permanently relocated to Europe. (Cheban Decl., ¶ 2.) He attests that he has only entered the United States on one occasion since that time, which was in February 2019 for a short business trip. (Id.) He reaffirms that he has since July 2018 lived and resided continuously in Europe. (Id.)
Plaintiff, in turn, argues that the above substitute service was valid because the Sunset Plaza Address was Cheban’s “usual mailing address.” Plaintiff’s argument is premised, in part, on the fact that certain mailings sent to the Sunset Plaza Address were not returned by the postal service and that Cheban provided the Sunset Plaza Address to Plaintiff. The court does not find this information sufficient to overcome Cheban’s testimony that he has lived permanently in Europe since July 2018. Even if the court were to consider the heavily redacted credit bureau reports (which it is not inclined to do, per the ruling on the above evidentiary objections), said reports are not sufficient to overcome Cheban’s testimony that he has lived permanently in Europe since July 2018.
Plaintiff, then, has not met its burden “to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers, supra, 140 Cal.App.4th at 413).
The motion is granted.