This case was last updated from Los Angeles County Superior Courts on 09/22/2023 at 18:05:26 (UTC).

SIMPAD ZABOUNIAN VS BRIAN BEJARANO, AN INDIVIDUAL, ET AL.

Case Summary

On 08/23/2019 SIMPAD ZABOUNIAN filed a Personal Injury - Other Personal Injury lawsuit against BRIAN BEJARANO, AN INDIVIDUAL,. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE, WILLIAM A. CROWFOOT and EDWARD B. MORETON, JR.. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0244

  • Filing Date:

    08/23/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

WILLIAM A. CROWFOOT

EDWARD B. MORETON, JR.

 

Party Details

Plaintiff

ZABOUNIAN SIMPAD

Defendants

VIVA HOLLYWOOD LOUNGE

BEJARANO AN INDIVIDUAL BRIAN

BNG SECURITY

DWG INTERNATIONAL INC. A MICHIGAN CORPORATION

THE JET GROUP LLC DBA THE STUDY HOLLYWOOD DBA PROJECT CLUB LA

Attorney/Law Firm Details

Plaintiff Attorney

MITILIAN ARMEN GARO ESQ.

Defendant Attorneys

SNYDER LORIN D ESQ.

MANAVI JESSICA ESQ.

 

Court Documents

Notice of Change of Firm Name

8/21/2023: Notice of Change of Firm Name

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; STATUS CONFERENCE RE: PARTIES TO TH...)

12/6/2022: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; STATUS CONFERENCE RE: PARTIES TO TH...)

Joint Status Conference Report

11/29/2022: Joint Status Conference Report

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

9/28/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

Status Conference Statement - PLAINTIFF'S STATEMENT REGARDING STATUS OF SERVICE AND APPEARANCES

9/27/2022: Status Conference Statement - PLAINTIFF'S STATEMENT REGARDING STATUS OF SERVICE AND APPEARANCES

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL MOTION TO COMPEL DEPOSITION OF PL...)

9/22/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL MOTION TO COMPEL DEPOSITION OF PL...)

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

8/19/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

Notice of Ruling

8/29/2022: Notice of Ruling

Opposition - OPPOSITION TO MOTION TO COMPEL DEPOSITION OF PLAINTIFF SIMPAD ZABOUNIAN; DECLARATION OF ARMEN G. MITILIAN

9/9/2022: Opposition - OPPOSITION TO MOTION TO COMPEL DEPOSITION OF PLAINTIFF SIMPAD ZABOUNIAN; DECLARATION OF ARMEN G. MITILIAN

Motion to Compel - MOTION TO COMPEL DEFENDANT MOTION TO COMPEL PLAINTIFF DEPOSITION

6/28/2022: Motion to Compel - MOTION TO COMPEL DEFENDANT MOTION TO COMPEL PLAINTIFF DEPOSITION

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...) OF 05/20/2022

5/20/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...) OF 05/20/2022

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

5/20/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

5/11/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

5/19/2022: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

5/11/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

4/18/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

4/13/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL/FAILURE TO FILE PROOF OF SE...)

Informal Discovery Conference Form for Personal Injury Courts

3/25/2022: Informal Discovery Conference Form for Personal Injury Courts

45 More Documents Available

 

Docket Entries

01/08/2024

Hearing01/08/2024 at 08:30 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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12/22/2023

Hearing12/22/2023 at 10:00 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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11/27/2023

Hearing11/27/2023 at 1:30 PM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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09/11/2023

DocketMotion for Summary Judgment; Filed by: Viva Hollywood Lounge (Defendant); The Jet Group, LLC (Defendant); As to: Simpad Zabounian (Plaintiff)

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09/11/2023

DocketSeparate Statement; Filed by: Viva Hollywood Lounge (Defendant); The Jet Group, LLC (Defendant)

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09/11/2023

DocketUpdated -- Motion for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENTOR IN THE ALTERNATIVE SUMMARY ADJUDICATION: Name Extension: DEFENDANTS MOTION FOR SUMMARY JUDGMENTOR IN THE ALTERNATIVE SUMMARY ADJUDICATION ; As To Parties changed from Simpad Zabounian (Plaintiff) to Simpad Zabounian (Plaintiff)

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09/11/2023

DocketHearing on Motion for Summary Judgment scheduled for 11/27/2023 at 01:30 PM in Spring Street Courthouse at Department 27

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08/21/2023

DocketNotice of Change of Firm Name; Filed by: Viva Hollywood Lounge (Defendant); New Firm Name: LAW OFFICES OF SCOTT C STRATMAN

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08/21/2023

DocketUpdated -- Lorin D Snyder, Esq. (Attorney): Organization Name changed from Stratman & Williams-Abrego to LAW OFFICES OF SCOTT C STRATMAN

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12/06/2022

DocketNon-Jury Trial scheduled for 01/08/2024 at 08:30 AM in Spring Street Courthouse at Department 27

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120 More Docket Entries
09/09/2019

DocketCertificate of Mailing for [PI General Order], Standing Order re PI Procedures and Hearing Dates; Filed by: Clerk

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09/09/2019

DocketPI General Order; Filed by: Clerk

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08/28/2019

DocketFinal Status Conference scheduled for 02/05/2021 at 10:00 AM in Spring Street Courthouse at Department 4B

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08/28/2019

DocketNon-Jury Trial scheduled for 02/19/2021 at 08:30 AM in Spring Street Courthouse at Department 4B

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08/28/2019

DocketOrder to Show Cause Re: Dismissal scheduled for 08/19/2022 at 08:30 AM in Spring Street Courthouse at Department 4B

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08/28/2019

DocketCase assigned to Hon. Laura A. Seigle in Department 4B Spring Street Courthouse

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08/23/2019

DocketComplaint; Filed by: Simpad Zabounian (Plaintiff); As to: Brian Bejarano, an individual (Defendant); BNG Security (Defendant); Viva Hollywood Lounge (Defendant) et al.

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08/23/2019

DocketCivil Case Cover Sheet; Filed by: Simpad Zabounian (Plaintiff); As to: Brian Bejarano, an individual (Defendant); BNG Security (Defendant); Viva Hollywood Lounge (Defendant) et al.

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08/23/2019

DocketSummons on Complaint; Issued and Filed by: Simpad Zabounian (Plaintiff); As to: Brian Bejarano, an individual (Defendant); BNG Security (Defendant); Viva Hollywood Lounge (Defendant) et al.

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08/23/2019

DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: *******0244 Hearing Date: September 22, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SIMPAD ZABOUNIAN,

Plaintiff(s),

vs.

BRIAN BEJARANO, et al.,

Defendant(s).

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CASE NO.: *******0244

[TENTATIVE] ORDER RE: DEFENDANT VIVA HOLLYWOOD LOUNGE’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION; REQUEST FOR SANCTIONS AND ATTORNEYS’ FEES

Dept. 27

1:30 p.m.

September 22, 2022

On August 23, 2019, plaintiff Simpad Zabounian (“Plaintiff”) filed this action against defendants BNG Security, Brian Bejarano, Viva Hollywood Lounge, The Study Hollywood fka Viva Hollywood Lounge, Project Club LA fka Viva Hollywood Lounge, and DWG International, Inc. Plaintiff alleges he was severely beaten by Bejarano on May 5, 2018, at approximately 12:30 a.m.

On February 13, 2020, Plaintiff amended the Complaint to add The Jet Group, LLC dba Viva Hollywood Lounge dba The Study Hollywood dba Project Club LA as Doe 1.

On June 28, 2022, Viva Hollywood Lounge and The Jet Group, Inc. (collectively, “Defendants”) filed this motion to compel Plaintiff’s deposition on July 10, 2022. Defendants also requested sanctions including attorneys’ fees and court reporter fees for Plaintiff’s failure to appear at a previously noticed deposition.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., 2025.280, subd. (a).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., 2025.450, subd. (a).) The motion shall be accompanied by a meet and confer declaration under Section 2016.040 or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b)(2).)

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., 2025.450, subd. (g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., 2025.450, subd. (g)(2).)

On September 9, 2022, Plaintiff filed an opposition brief and argued that Defendants’ motion was moot because Plaintiff’s deposition was taken and completed on August 24, 2022. Plaintiff also argues that Defendants and counsel did not meet and confer prior to filing the motion and that Plaintiff’s failure to appear on the unilaterally noticed date was justified and necessary.

Defendants’ meet and confer declaration does not show that defense counsel met and conferred with Plaintiff’s counsel prior to filing this motion. Furthermore, Plaintiff’s failure to attend the deposition unilaterally noticed by Defendants was due to Plaintiff’s counsel’s unavailability. Plaintiff’s counsel declares that he was at the federal building conducting personal/family business for a scheduled and prepaid vacation. (Mitilian Decl., 3.)

In light of the foregoing, Defendants’ motion to compel is DENIED and Defendants’ request for sanctions is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.



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Case Number: *******0244 Hearing Date: December 16, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SIMPAD ZABOUNIAN,

Plaintiff(s),

vs.

BRIAN BEJARANO, et al.,

Defendant(s).

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CASE NO.: *******0244

[TENTATIVE] ORDER RE: DEFENDANT VIVA HOLLYWOOD LOUNGE’S MOTION TO STRIKE

Dept. 27

1:30 p.m.

December 16, 2021

  1. INTRODUCTION

On August 23, 2019, plaintiff Simpad Zabounian filed this action against defendant Viva Hollywood Lounge (“Defendant”), Brian Bejarano (“Bejarano”), BNG Security, DWG International, Inc., The Study Hollywood fka Viva Hollywood Lounge, and Project Club fka Viva Hollywood Lounge. Plaintiff alleges that on May 5, 2021, he was severely beaten by Bejarano and other Doe individuals working as security guards, bouncers, or doormen for Defendant. Plaintiff asserts that Defendant negligently failed to provide security and prevent excessive force, and failed to adequately supervise and train Bejarano and the other Doe defendants. Plaintiff also asserts causes of action for assault, intentional infliction of emotional distress, battery, and premises liability.

On November 9, 2021, Defendant filed this motion to strike. In the notice of motion, Defendant requests that the Court strike Plaintiff’s request for exemplary damages, including the prayer for punitive damages on page 3, Item 14a(2) of the Complaint; page 8, paragraph 8; page 10, paragraph 9; page 12, paragraph 8; page 14, paragraph 5; and the attachment for exemplary damages. However, in the conclusion, Defendant’s request is far more expansive and seeks to strike 23 parts of Plaintiff’s Complaint. While some portions of the Complaint should be stricken, Defendant’s request in its entirety is improper, as further explained below.

  1. LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., ; 435 subd., (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc, ; 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ Proc, ; 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., ; 437.)

  1. DISCUSSION

Meet and Confer

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ Proc., ; 435.5, subd. (a).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., ; 435.5, subd. (a)(3).)

Defense counsel Lorin D. Snyder declares that on October 26, 2021, she sent an e-mail to Plaintiff’s counsel requesting that Plaintiff withdraw the claim for punitive damages without prejudice. (Snyder Decl., ¶ 3.) However, Plaintiff’s counsel refused to stipulate to such a withdrawal. (Ibid.)

The meet and confer did not take place in person or over the telephone as required. Accordingly, the meet and confer requirement is not satisfied. The Court proceeds to analyze the motion on its merits but cautions that failure to meet and confer in the future as required by the Code of Civil Procedure will result in the motion being taken off calendar.

Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, ; 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, ; 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, ; 3294, subd. (b).)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Here, Plaintiff asserts claims against Defendant for direct liability (negligent supervision, premises liability, negligence) as well as vicarious liability for Bejerano’s alleged intentional torts. However, Plaintiff fails to identify specific facts identifying any officer, director, or managing agent who: (1) acted with oppression, fraud, or malice; (2) had advance knowledge of Bejerano’s unfitness and employed him with conscious disregard, or (3) authorized or ratified Bejerano’s conduct. Accordingly, Plaintiff’s request for punitive or exemplary damages against Defendant is inappropriate and must be stricken. However, Plaintiff’s request for general damages remains insofar as it is directed against Bejarano and the other individuals.

Nevertheless, Defendant’s motion is overbroad in that it requests the Court strike allegations that are simply factual, and not allegations that pray for punitive damages. For example, Defendant inappropriately requests that the Court strike the allegation that Bejerano “was an employee, agent and/or authorized representative of a list of various defendants (collectively, TAVERN DEFENDANTS”). (See e.g., Motion at 10:8-9, 10:12-21.) Therefore, Defendant’s motion is only GRANTED in part.

  1. CONCLUSION

Defendant’s motion is GRANTED only as to the following:

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

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Case Number: *******0244    Hearing Date: July 21, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SIMPAD ZABOUNIAN,

Plaintiff,

vs.

BNG SECURITY, et al.,

Defendants.

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.: *******0244

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT; QUASH SERVICE OF SUMMONS

Dept. 27

1:30 p.m.

July 21, 2020

On August 23, 2019, plaintiff Simpad Zabounian filed this action against defendant DWG International, Inc. (“Defendant”), among others.  Plaintiff alleges he was assaulted and battered by a security guard while a patron at a loungeOn October 1, 2019, Plaintiff filed a proof of service showing Defendant was served via its agent for service, David W. Gajda, on September 17, 2019.  The proof of service further states that Gajda was served via substitute service at 7854 Clarks Cove, Addison, Michigan 49220 by leaving a copy of the documents with Lorraine Bilinski, who is his “sister/co-occupant.”  Default was entered against Defendant on October 29, 2019.  Defendant filed this Motion to vacate and set aside default on April 16, 2020.  

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgments or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (Cal. Civ. Proc. Code ; 473 (d).)  “ ‘A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  (Hearn v. Howard, 177 Cal. App. 4th 1193, 1200 (2009) (citations omitted); Ellard v. Conway, 94 Cal. App. 4th 540, 544 (2001).)  Relief on this basis generally requires consideration of extrinsic evidence.  (Trackman v. Kenney, 187 Cal. App. 4th 175, 180 (2010).)

A summons may be served on a corporation by delivering a copy of the summons and complaint: (1) to the person designated as agent for service of process (Cal. Civ. Proc. Code ; 416.10 (a)); (2) to the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process (Cal. Civ. Proc. Code ; 416.10 (b)); or (3) a method authorized by California Corporations Code sections 1701, 1702, 2110, or 2111 (Cal. Civ. Proc. Code ; 416.10 (c)). ; The California Corporations Code authorizes service on any natural person designated as a corporation’s agent, service on the California Secretary of State with a court order authorizing such service, service on a foreign corporation’s officers and general managers in California. ; (Cal. Corp. Code, ;; 1701, 1702, 2110, 2111.) ;

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected 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 . . . in the presence of . . . a person apparently in charge . . . and by thereafter mailing a copy of the summons and complaint by first-class mail . . . to the person to be served at the place where a copy of the summons and complaint were left.” ; (Cal. Civ. Proc. Code ; 415.20 (b).) ; Reasonable diligence is typically satisfied where there are “two or three attempts to personally serve a defendant at a proper place” ;(Espindola ;v. Nunez, 199 Cal. App. 3d 1389, 1392 (1988)), or there are a “number of honest attempts to learn defendant’s whereabouts or his ;address by inquiry” and use of public records (Board of Trustees of the Leland Stanford Junior University v. Ham, ;216 Cal. App. 4th 330, 337 (2013)). ; ;

Substitute service is a secondary method of service (Evartt ;v. Superior Court, 89 Cal. App. 3d 795, 799 (1979)) and ;in order to ;obtain personal jurisdiction through any form of constructive service, there must be strict compliance with statutory requirements (Stamps v. Superior Court, 14 Cal. App. 3d 108, 110 (1971)). ; ;“To be constitutionally sound, the form of substituted service must be ‘reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard . . . in order that the traditional notions of fair play and substantial justice implicit in due process are satisfied.’ ; [Citation.]” ; (Zirbes ;v. Stratton, 187 Cal. App. 3d 1407, 1416 (1986).) ; ; ;

Filing a proof of service by a registered process server creates a rebuttable presumption that service was proper where the proof of service complies with the statutory requirements. ; (American Express Centurion Bank v. Zara, 199 Cal. App. 4th 383, 390 (2011); ;Evid. Code, ; 647.) ; A proof of service of summons may be impeached by evidence that contradicts it. ; (City of Los Angeles v. Morgan, 105 Cal. App. 2d 726, 731 (1951).) ; ; ;

Defendant argues its agent for service of process, Gadja, was never properly served because he does not reside or work at the address listed on the proof of service.  Rather, Bilinski, Gadja’s sister, lives at that address by herself.  In support, Gadja and Bilinski submit declarations attesting that Gadja does not live or work at 7854 Clarks Cove and DWG has no connection to that address or Bilinski(Gadja Decl., ¶¶ 5-10; Bilinski Decl., ¶¶ 2-3.)  

In opposition, Plaintiff argues service was proper because the process server attempted to serve Defendant and Gadja at the address listed on the registration documents filed with the Secretary of State in Michigan.  But, after several attempts to effect service at the listed address, the process server checked for an alternate address and found Gadja’s home address at 7854 Clarks Cove.  Then, after three more attempts to serve Gadja at the Clarks Cove address, the process server left the documents with Bilinski because she was his sister and co-occupant.

Plaintiff’s reliance on the declaration of his process server is misplaced.  The process server does not have personal knowledge of where Gadja lives or whether he lives with his sister.  Gadja and Bilinski’s declarations state that the address on the proof of service was not Gadja’s place of business or residence Defendant has succesfully rebutted the presumption that service was proper and the Court finds that service on Gadja’s sister’s address was not reasonably calculated to give Defendant notice.  (See Zirbes, 187 Cal. App. 3d at 1415 (service on defendant’s mother not reasonably calculated to give defendant notice when defendant had completely separate household).)

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  

Dated this 21 day of July 2020

Hon. Edward B. Moreton, Jr. 

Judge of the Superior Court