Opinion
G059901
03-22-2022
ALEXANDER J. HASHTROUDI, Plaintiff and Appellant, v. LILI HAJ-AZIMI et al., Defendants and Respondents.
Rad Law Group, Peyman H. Rad and Barzin Sabahat; Rutan & Tucker, Mark D. Adams, Proud Usahacharoenporn, and Sarah Gilmartin for Plaintiff and Appellant. Newmeyer & Dillion, Joseph A. Ferrentino and Amtoj S. Randhawwa for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. 30-2018-01027837, Deborah C. Servino, Judge. Affirmed.
Rad Law Group, Peyman H. Rad and Barzin Sabahat; Rutan & Tucker, Mark D. Adams, Proud Usahacharoenporn, and Sarah Gilmartin for Plaintiff and Appellant.
Newmeyer & Dillion, Joseph A. Ferrentino and Amtoj S. Randhawwa for Defendants and Respondents.
OPINION
O'LEARY, P. J.
This case arises from an action brought by Alexander J. Hashtroudi against David Hamid Saber and Caltrop Corporation (Caltrop). This appeal concerns the trial court's orders regarding Hashtroudi's attempts to bring third parties Lili Haj-Azimi and Nagmeh Reshad (collectively referred to as Respondents) into the case as Doe defendants. The court did not err by granting the motion to quash service of documents (motion to quash) in favor of Respondents and subsequently striking the Doe amendments.
FACTS
We need not delve into the details of the underlying case. Suffice it to say, Hashtroudi filed a complaint in October 2018 against former business associate and friend, Saber, as well as Caltrop, an entity they co-owned.
Respondents are Saber's wife, Reshad, and his mother-in-law, Haj-Azimi. Respondents were not named as defendants in Hashtroudi's initial complaint. The complaint included the following allegations against Haj-Azimi: "Once the lease was terminated and the property was sold, without any form of proof presented, [Saber] claimed that [Hashtroudi] owed a loan and interest in the amount of $1.05 million resulting from a borrowing from [Saber's] mother-in-law. Therefore, [Saber] did not give [Hashtroudi] half of the $1.5 million from the termination agreement, $750,000 he was entitled to as a result of the lease termination." It further alleged, "Nonetheless, [Hashtroudi] paid $600,000 directly to [Saber's] mother-in-law." Hashtroudi filed a first amended complaint in March 2019, which also did not name Respondents.
In December 2019, Hashtroudi included Respondents on a list of people he wished to depose prior to trial, set for April 6, 2020. Much back and forth ensued, but counsel for Saber stated he failed to see the relevance of the depositions and added he did not represent Respondents and could not produce them for depositions.
In February 2020, Hastroudi filed ex-parte applications to continue the then-scheduled April 6, 2020, trial date. Hashtroudi contended the rapidly approaching trial needed to be continued to take Respondents' depositions because there was a possibility of a claim against Haj-Azimi to recover $600,000 that Saber claimed was owed to her. The court denied both ex-parte applications.
The COVID-19 pandemic caused the trial court to close indefinitely and delayed the then-scheduled April 6, 2020, trial date. At the end of April 2020, Hashtroudi submitted to the court: (1) Doe amendments naming Haj-Azimi and Reshad as defendants to the first amended complaint (Doe amendments); and (2) a motion for leave to file a second amended complaint (motion for leave).
In August 2020, the trial court denied Hashtroudi's motion for leave and specifically determined as follows: "Granting [Hashtroudi] leave to file the proposed Second Amended Complaint would prejudice Defendants. Once [Hashtroudi] serves Reshad and Azimi in France (itself a potentially time-consuming endeavor), Reshad and Azimi would undoubtedly require, inter alia, a significant trial continuance to conduct discovery and prepare for trial in this extensively-litigated case. Additional discovery and a continued trial date impose additional expense and delay on all parties, including Defendants. [Hashtroudi's] contention that Defendants will not be prejudiced because Defendants could conduct more discovery and because [Hashtroudi] will seek more discovery ignores that more discovery necessarily generates more expense. [Hashtroudi's] claim that Defendants will not be prejudiced because [Hashtroudi] will agree to continue the trial ignores that Defendants repeatedly opposed [Hashtroudi's] attempts to continue the April 6, 2020 trial date. Defendants were prepared to try the case on April 6, 2020; but for the intervening and unforeseeable pandemic, the trial would have occurred by now.
"Moreover, [Hashtroudi] has not offered a convincing explanation for his failure to name Reshad and Azimi sooner. [Hashtroudi] argues that he did not learn sufficient facts to name Reshad and Azimi until March 2020, but [Hashtroudi] does not deny that he sought to depose them earlier in the case and did not follow through and that his original complaint contained allegations regarding Azimi's alleged role in the events. Indeed, in [Hashtroudi's] reply declaration submitted in support of this motion, [Hashtroudi] states that 'on November 12, 2016, Saber began to claim that he and [Plaintiff] owed Saber's mother-in-law, Lili Azimi, for a loan of $1.7 million with interest at 10 [percent] or a total of $2,125,567.' [Citation.]
"Based on this record, the court finds that [Hashtroudi] has not offered a persuasive explanation for not seeking this amendment sooner and that granting [Hashtroudi] leave to file a Second Amended Complaint at this late stage would prejudice Defendants. Plaintiffs' motion is denied. Trial remains scheduled for September 28, 2020 at 9:00 a.m. in Department C13."
In September 2020, Hashtroudi filed a petition for writ of mandate, asking this court to overturn the trial court's order denying his motion for leave. We denied the request that same month. (Hashtroudi v. Superior Court (Sept. 9, 2020, G059391) [nonpub. ord.].)
Notwithstanding the trial court's ruling it was too late to bring Respondents into the case, on September 24, 2020 (four days before the scheduled trial date), Hashtroudi filed two proofs of service alleging to have personally served Respondents with a copy of the following documents on September 17, 2020, in Paris, France: (1) summons; (2) first amended complaint; (3) amendment to complaint; (4) exhibits A and B; and (5) notice to appear at trial and produce documents (collectively referred to as documents).
On September 25, 2020, the initial trial court judge recused herself after recognizing a potential conflict in the parties' joint witness list. The trial date was vacated and the matter was reassigned.
In October 2020, counsel specially appeared on behalf of Respondents to file the motion to quash service of documents. The proofs of service Hashtroudi filed with the trial court stated Respondents were personally served with the documents on September 17, 2020, in Paris, France. Respondents sworn testimony and that of three independent witnesses (two neighbors and a building manager in Paris) demonstrated neither was in Paris on September 17, 2020. The evidence showed Respondents left Paris on September 5, 2020, due to the increase in COVID-19 cases and their increased susceptibility to the virus.
The trial court granted the motion to quash. It determined: "This Court's August 13, 2020 ruling establishes that [Hashtroudi] cannot prove that he did not know of Reshad's and Azimi's identities or facts about their involvement in this action when he filed the Doe amendments. The Doe amendments were improper." The court went on to explain even if the Doe amendments had been proper, service of process was ineffective: "Here, [Hashtroudi] did not attempt service through France's Central Authority. [Hashtroudi] also did not attempt to serve Reshad and Azimi as prescribed by France. [Citations.] Rather, it appears that [Hashtroudi] hired a private process server (Jeanine Bouvier) to attempt to serve Reshad and Azimi.
"Service of process through the private process server did not even comply with California law for service of persons within or outside of California. Under Code of Civil Procedure section 415.10, personal service requires service on the person named as a defendant. Here, there is no evidence offered to rebut, let alone refute, Reshad's and Azimi's evidence that they were not at their residence on the date of service. Instead, [Hashtroudi] offers Bouvier's declaration, which consists of unsupported conjecture about Reshad's and Azimi's identities and whereabouts. Bouvier admits that she left each summons outside the front door. [Citation.] Personal service did not happen."
Finally, the court explained service by mail was similarly deficient: "After the motion was filed, [Hashtroudi] also attempted to serve Reshad and Azimi by first-class registered mail with a tracking number. . . . Service by first-class registered mail with a tracking number did not constitute valid service of process under California law, and as a result, did not comply with the Hague Convention article 10, subdivision (a). [¶] Accordingly, the motion is granted. The service of summons, first amended complaint, and Doe amendments are hereby ordered quashed. The Doe Amendments of Nagmeh Reshad (Doe 3), . . . and Lili Haj Azimi (Doe 2), . . . are ordered stricken. [¶] This ruling renders moot [Hashtroudi's] motion for order severing Azimi and Reshad and for order granting separate trial as to those defendants . . . ."
DISCUSSION
I. Scope of Appeal
"'[T]he right of appeal is wholly statutory, no judgment or order is appealable unless expressly . . . made appealable by a specific statute.'" (Caruso v. Snap-Tite, Inc. (1969) 275 Cal.App.2d 211, 213.) Code of Civil Procedure section 904.1 lists specific orders that are appealable. An order granting a motion to quash service of summons is specifically enumerated under section 904.1, subdivision (a)(3). Thus, the only appealable order at issue is the one granting the motion to quash.
All further statutory references are to the Code of Civil Procedure.
However, in addition to the order granting the motion to quash, Hashtroudi attempts to appeal from the court's August 2020 denial of his motion for leave to file a second amended complaint, as well as orders striking the Doe amendments and denying the motion to sever. While not directly appealable, we recognize the order striking the Doe amendments resolved all issues as to Respondents. Since the order does effectively dismiss the action as to Respondents, however, we construe it as an order of dismissal, which constitutes an appealable judgment. (See BGJ Associates v. Wilson (2003) 113 Cal.App.4th 1217, 1225, fn. 3.) Because we affirm the trial court's order granting the motions to quash and strike the Doe amendments, Hashtroudi's motion for order severing Respondents from trial is rendered moot. We decline to review the court's denial of Hashtroudi's motion for leave to file a second amended complaint because it is not an appealable order and does not only pertain to Respondents. (Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 241 ["ordinarily the denial of a motion for leave to file an amended complaint is not an appealable order"].)
II. Analysis
Hashtroudi asserts the trial court erred by granting the motion to quash and striking the Doe amendments. Not so.
A motion to quash service on a purported Doe defendant may be brought where the terms of section 474 have not been met. (See Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 ["[a]bsent compliance with . . . section 474, service . . . is ineffective"].) "[A] defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion," showing first, that plaintiff "unreasonably delayed" in filing the amendment after learning of defendant's identity, and second, that "'defendant suffered prejudice from any such delay.'" (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067.)
We review the trial court's order granting the motion to quash for substantial evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169.) Under this standard, we must accept the conclusion of the factfinder, here the trial court, even if different inferences may reasonably be drawn from the undisputed evidence. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 301.) Accordingly, we resolve all conflicts in the evidence and draw all reasonable inferences in favor of the prevailing party. (Le v. Pham (2010) 180 Cal.App.4th 1201, 1205-1206.)
Pursuant to section 436, "[t]he court may . . . at any time in its discretion, and upon terms it deems proper: . . . [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (§ 436, subd. (b).) We review a trial court's decision to strike a portion of a pleading, including Doe amendments, for abuse of discretion. (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1497.) We will only disturb the ruling upon a showing of a clear case of abuse and a miscarriage of justice. (Ibid.)
When a plaintiff is ignorant of the name of a defendant at the time the complaint is filed, the plaintiff may designate a fictitious name in the complaint. (§ 474.) "[W]hen [the] true name is discovered, the pleading . . . must be amended accordingly." (Ibid.) "Whether [a Doe] amendment conforms to section 474, that is, whether it is made in good faith or is otherwise proper, is, in either event, a matter which rests primarily with the trial court. [Citation.]" (Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 723 (Gutierrez).)
The parties agree Respondents reside in France. Both the United States and France are signatories of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). (Hague Conference on Private International Law status chart, <https://assets.hcch.net/docs/ccf77ba4-af95-4e9c-84a3-e94dc8a3c4ec.pdf> [as of Mar. 15, 2022].) California's methods for serving defendants in signatory countries are preempted by the Hague Convention. (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1064 (Inversiones).) Failure to comply with the Hague Service Convention procedures voids the service even if it was made in compliance with California law and where the defendant had actual notice of the lawsuit. (Ibid.)
'"The primary means by which service is accomplished under the [Hague Service] Convention is through a receiving country's "Central Authority." The Convention affirmatively requires each member country to designate a Central Authority to receive documents from another member country. [Citation.] The receiving country can impose certain requirements with respect to those documents (for example, that they be translated into the language of that country.) [Citation.] If the documents comply with applicable requirements, the [Hague Service] Convention affirmatively requires the Central Authority to effect service in its country.' [Citation.]" (Inversiones, supra, 20 Cal.App.5th at p. 1065.)
Hashtroudi admits he hired a private process server instead of attempting service through France's Central Authority. In support of its decision to grant the motion to quash, the trial court made the following findings of fact: "Here, there is no evidence offered to rebut, let alone refute, Reshad's and Azimi's evidence that they were not at their residence on the date of service. Instead, [Hashtroudi] offers Bouvier's declaration, which consists of unsupported conjecture about Reshad's and Azimi's identities and whereabouts. Bouvier admits that she left each summons outside the front door. . . . Personal service did not happen." Indeed, the purported service of process through the private process server did not even comply with California law for service of persons within or outside of California. Under section 415.10, personal service requires service on the person named as a defendant.
After Respondents filed the motion to quash, Hashtroudi attempted to serve them by first-class registered mail with a tracking number. The Hague Convention does not prohibit service by mail, but it also does not affirmatively authorize it. In cases governed by the Hague Convention, service by mail is permissible if two conditions are met: the receiving state has not objected to service by mail; and service by mail is authorized under otherwise-applicable law. (Inversiones, supra, 20 Cal.App.5th at p. 1065-1066.) The first condition is met because France has not objected to service by mail under article 10, subdivision (a) of the Hague Convention. (Hague Conference on Private International Law, France-Central Authority & practical information <https://www.hcch.net/en/states/authorities/details3/?aid=256> [as of Mar. 15, 2022].)
Under California law, there are two applicable code sections involving service by mail. Section 415.30 requires a mailing include a notice and acknowledgment of receipt to be signed by the defendant and a return envelope, postage prepaid, addressed to the sender. Similarly, section 415.40 requires a summons served on a person outside of California that the summons must be made "by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt." Hashtroudi concedes he did not request a return receipt. Instead, the documents were sent via first-class registered mail with a tracking number. Service by first-class registered mail with a tracking number does not constitute valid service of process under California law. Accordingly, service also did not comply with the Hague Convention article 10, subdivision (a), and was invalid. Substantial evidence supported the trial court's order granting the motion to quash.
After determining the motion to quash was proper, the court then struck the Doe amendments pursuant to section 436. Hashtroudi fails to demonstrate the trial court abused its discretion by doing so. He filed the Doe amendments without leave from the trial court on the eve of trial, despite already amending his complaint once and requesting leave to file a second amended complaint. Respondents put forth evidence demonstrating they were known to Hashtroudi at the time he filed the original complaint. Hashtroudi did not demonstrate otherwise. Finally, as described in detail above, the two purported attempts at serving Respondents in France were ineffective. The court acted within its discretion by striking the Doe amendments.
DISPOSITION
The orders granting the motion to quash and striking the Doe amendments are affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: MOORE, J. MARKS, J. [*]
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.