Ernest Mansi v. Charles Rim

Case Number

24CV00462

Case Type

Hearing Date / Time

Wed, 10/23/2024 - 10:00

Nature of Proceedings

1) Motion To Quash Service By Publication on Defendant; and, 2) Motion To Correct The Name Of The Petitioner

Tentative Ruling

For Petitioner Ernest Mansi: Erik B. Feingold, Moniqe L. Fierro, Myers, Widders, Gibson, Jones & Feingold, LLP

For Respondent Charles Rim: Chad Biggins, Biggins Law Group

RULING

(1) For all reasons discussed herein, the motion of Defendant Charles Rim to quash service by publication is granted. Service of the petition on Defendant as set forth in the proof of publication filed by Petitioner on June 6, 2024, is quashed. In addition, the Court’s May 2, 2024, Order For Publication Of Summons Or Citation, and July 15, 2024, Minute Order, Order After Ex Parte Hearing, and Order Granting Petition To Compel Arbitration, are each vacated.

(2) For all reasons discussed herein, the motion of Petitioner to correct name is continued to January 22, 2025. On or before January 8, 2025, the parties shall each file and serve supplemental briefs addressing the matters described herein. No additional papers in support of or in opposition to the motion of Petitioner to correct name shall be filed by the parties apart from the supplemental briefs authorized herein.

Background

This action commenced on January 25, 2024, with the filing of a petition (the petition) by Ernest Mansi (E. Mansi), for an order compelling Respondent Charles Rim (Rim) to submit a dispute to arbitration. As alleged in the petition:

E. Mansi and Rim are co-managers and members of SB Clark, LLC (SBC). (Pet., ¶¶ 1-2.) SBC was formed for the purpose of acquiring, owning, managing, selling, and otherwise disposing of real property consisting of approximately 146 acres of unimproved land located in the Orcutt, California (the Property). (Id. at ¶ 4.) In June 2022, Williams Communities, LLC (Williams) offered to purchase the Property from SBC for $20 million. (Id. at ¶¶ 6-7.) Williams paid into escrow a $100,000 deposit. (Id. at ¶¶ 6-8.) Thereafter, Rim withheld consent to and prevented the sale of the Property to Williams, causing the sale to be cancelled and prompting the return of the deposit paid by Williams. (Id. at ¶ 9.)

On July 26, 2022, E. Mansi and Rim entered into a Memorandum of Understanding (the MOU) under which the parties agreed to enter into binding arbitration as to their dispute over interest and capital due from the proceeds of the sale of the Property. (Pet., ¶¶ 3 & 10, Exh. A.) E. Mansi and Rim jointly selected arbitrator R.A. Carrington (Carrington) to arbitrate their dispute. (Id. at ¶ 12.) Rim has not paid Carrington’s deposit and otherwise refuses to arbitrate the dispute notwithstanding E. Mansi’s demand. (Id. at ¶¶ 12 & 14)

Court records reflect that on May 1, 2024, E. Mansi filed an application (the application) for an order directing service of the petition on Rim by publication. On May 2, 2024, the Court granted the application and entered an order (the Publication Order) authorizing service of the petition on Rim by publication in the Los Angeles Daily Journal. A proof of publication of the petition was filed by E. Mansi on June 6, 2024.

Court records further reflect that on July 10, 2024, E. Mansi filed an ex parte application (the ex parte application) requesting that the Court grant the petition. On July 15, 2024, the Court entered three orders with respect to the ex parte application: a Minute Order adopting the Court’s tentative ruling granting the ex parte application (the July 2024 Minute Order); an order after hearing granting the ex parte application (the July 2024 Order After Hearing); and an order granting the petition in which the Court ordered that the matters identified in the petition be submitted to binding arbitration (the Arbitration Order) (collectively, the July Orders).

On July 16, 2024, E. Mansi filed a notice stating that the Court “entered an order [granting] the [petition]. The matters identified in [the petition] are submitted to binding arbitration.” (July 16, 2024, Notice.) Attached to the notice filed by E. Mansi on July 16, 2024, is a copy of the Arbitration Order.

On September 13, 2024, Rim filed a notice of appeal, identifying orders entered on May 2, 2024, and July 15, 2024.

On September 18, 2024, Rim filed a motion to quash service of the petition by publication which is opposed by E. Mansi.

On September 26, 2024, E. Mansi filed a motion (the Mansi motion) to correct the name of Petitioner in this action to Aldersgate Investment, LLC, who E. Mansi contends is the real party in interest in this matter. Rim has filed an opposition to the Mansi motion.

Analysis

(1) Motion of Rim to Quash Service of the Petition

In the motion to quash, Rim contends that service of the petition by publication was improper and not warranted because E. Mansi had knowledge of Rim’s residential and business addresses, could easily ascertain the business address for Rim, and did not first attempt substitute service on Rim before filing the application. For these reasons, Rim argues, the application was without merit, and the Court should strike or vacate the Publication Order. Rim also effectively contends that publication of the petition without a summons is also defective. Rim further contends that, because the petition was improperly served, the July Orders are void and should therefore be vacated.

To the extent Rim contends that the Court lacks jurisdiction over him because service of the petition was improper or defective, or not served in compliance with the Publication Order, the motion to quash is procedurally appropriate. (See Code Civ. Proc., § 418.10, subd. (a)(1); Stancil v. Superior Court (2021) 11 Cal.5th 381, 400.) To support the request to vacate the Publication Order, Rim relies on information appearing in the application filed by E. Mansi as well as extrinsic evidence submitted with Rim’s declaration to show that Rim has had the same business address for 29 years, that Rim’s business address can be found online, and that Rim was living at the residence reflected in the application at the time service of the petition was attempted. (See Rim Decl., ¶ 2 & Exh. A.)

Under Code of Civil Procedure section 1008, “[w]hen an application for an order has been made to a judge, or to a Court, and … granted, … any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or Court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc., § 1008, subd. (a).) (Note: Undesignated statutory references shall be to the Code of Civil Procedure unless otherwise indicated.)

A Court may also, “on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or Court record without consideration of extrinsic evidence. [Citations.] There is no time limit to attack a judgment void on its face. [Citations.] If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.)

To the extent Rim argues that the July Orders are void, the motion to quash is timely for reasons further discussed above, In addition, the Court’s records do not reflect that written notice of entry of the Publication Order in this action was served by E. Mansi. The opposition of E. Mansi to the motion to quash, including the information appearing in the declaration of his counsel Erik B. Feingold (Feingold), also does not show or indicate that written notice of the Publication Order was provided to Rim at any time during this litigation. (See, e.g., Feingold Decl., ¶¶ 13-21 [describing documents served by E. Mansi on Rim in this action].) Therefore, to the extent Rim requests that the Court reconsider or revoke the Publication Order under section 1008, subdivision (a), the motion to quash is not untimely. The Court further notes that E. Mansi has substantively opposed the motion to quash with respect to whether or not service of the petition by publication, and entry of the Publication Order, was appropriate. (See, e.g., Opp. at pp. 7-8.)

For all reasons discussed above, based on the arguments offered by Rim and the nature of the relief sought in the motion to quash, it is the Court’s understanding that Rim seeks reconsideration of the Publication Order, and an order vacating the July Orders as void based on the purported defective service of the petition. Therefore, the Court will deem the motion to quash as brought under sections 418.10, 473, and 1008.

“Section 415.10 et seq. governs the manner of service of a summons. A summons may be served by various methods. If service of a summons by other means proves impossible, service may be effected by publication, upon the trial Court’s approval. [Citation.] Section 415.50 governs this method of service.” (Rios v. Singh (2021) 65 Cal.App.5th 871, 880 (Rios).)

Under section 415.50, “[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the Court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: [¶] (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action. [¶] (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the Court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.” (Code Civ. Proc., § 415.50, subd. (a)(1)-(2).)

To show that the party cannot with reasonable diligence be served in a manner other than by publication, “[a] number of honest attempts to learn the Defendant’s whereabouts through inquiry and investigation generally are sufficient. [Citation.] A Plaintiff must show such efforts because it is generally recognized that service by publication rarely results in actual notice. [Citation.] Whether the Plaintiff exercised the diligence necessary to justify resort to service by publication depends on the facts of the case. [Citation.] The question is whether the Plaintiff took the steps a reasonable person who truly desired to give notice of the action would have taken under the circumstances.” (Rios, supra, 65 Cal.App.5th at p. 880.)

In the application, E. Mansi identified the following residence and business addresses for Rim, where E. Mansi declared were the last known addresses where E. Mansi believed Rim resided: 49 Santa Catalina Drive, Rancho Palos Verdes, CA 90275 (the RPV address) and 26314 S. Western Avenue, # 200, Lomita, CA 90717 (the Lomita address). (Application, ¶¶ 4-5.) Attached to the application is a Declaration of Non-Service (the service declaration) signed on March 5, 2024, by “independent contractor” Gabriela Melendez, under penalty of perjury. (Id. at PDF pp. 5-6.) The service declaration identifies six attempts to serve Rim at the Lomita address between February 22 and March 7, 2024. (Id. at PDF p. 5.) The service declaration also reflects that, during each service attempt, Rim was “not in” per an “employee”. (Ibid.) The service declaration also identifies two attempts to serve Rim on March 3 and 5, 2024, at the Lomita address, and that the property was “gated” or the house was “closed off”. (Id. at PDF p. 6.) This information indicates that Rim either resided or conducted business at the addresses identified by E. Mansi in the application

Upon further consideration the application and due process concerns, including that the application was necessarily brought without notice to or an opportunity to oppose by Rim, granting the application and authorizing service of the petition by publication was not warranted or justified based on the information offered by E. Mansi. For example, wholly absent from the application is any information showing whether or not E. Mansi believed that the addresses identified in the application were invalid or why. To the extent it can be inferred from the scant information offered in the application that Rim could not reasonably be served at either the RPV address or the Lomita address, or that a valid address at which Rim could be served following the unsuccessful attempts at service could not be ascertained, also absent from the application is any information or evidence showing any attempt by E. Mansi to learn Rim’s whereabouts. (Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5 [general discussion regarding sufficiency of “honest attempts” to learn Defendant’s whereabouts].) Upon further consideration of the information provided in the application, E. Mansi has failed to demonstrate the necessary “quantum of diligence as would justify resort to service by publication.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333.)

In addition, and giving the information appearing in the application further consideration, to the extent that it can be inferred that the RPV address and Lomita address were valid or that the information showed that Rim resided or conducted business at these addresses notwithstanding that Rim was not present during the service attempts, there is no information to show that E. Mansi attempted another or alternative manner of service specified in section 415.10 et seq., in addition to the attempts to personally serve the petition as described in the service declaration. There is also no information or evidence presented in the application to show why substitute service under section 415.20 could not be effected at either of the addresses. For this reason, it appears that E. Mansi failed to use reasonable diligence to serve Rim with the petition “by a means superior to publication” before filing the application. (Rios, supra, 65 Cal.App.5th at p. 881.)

For all reasons discussed above, though Rim does not raise or demonstrate a “change in circumstances or law that would call into question” the Publication Order for purposes of section 1008 (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1338), there exists sufficient grounds on which the Court may exercise its inherent authority to reconsider and vacate the Publication Order on the grounds that service by publication was not appropriate or warranted based on information and evidence submitted by E. Mansi at the time the application was filed. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314.) Furthermore, additional information appearing in the Rim declaration shows that the addresses identified in the service declaration were valid at the time E. Mansi attempted personal service of the petition. E. Mansi has failed to explain, either in the application or the opposition to the motion to quash, why service of the petition could not be made pursuant to another method including the method described in section 415.20.

Moreover, though E. Mansi offers evidence and information purporting to show Rim’s participation in arbitration proceedings prior to the date the petition was filed, this evidence and information was not included with the application and is insufficient to demonstrate that Rim had actual or constructive knowledge of the filing of the petition. Even if this information appeared in the application, actual notice or knowledge by a Defendant of an action, alone, will not satisfy the requirement of adequate and proper service of process and is insufficient to establish a Court’s jurisdiction. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392-393 (American Express).)

There exist additional grounds on which the Court may grant the motion to quash. “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.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439 (Dill); see also Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832 [“[s]ervice of summons in conformance with the mode prescribed by statute is deemed jurisdictional”].) “When a Defendant argues that service of summons did not bring him or her within the trial Court’s jurisdiction, the Plaintiff has ‘the burden of proving the facts that did give the Court jurisdiction, that is the facts requisite to an effective service.’ [Citation.]” (American Express, supra, 199 Cal.App.4th at p. 387.)

“Section 415.50, subdivision (b) requires publication of the summons. It does not require publication of the complaint.” (Rios, supra, 65 Cal.App.5th at p. 883.) In addition to the deficiencies noted above, the proof of publication filed by E. Mansi on June 6, 2024, demonstrates that the petition was published in the Los Angeles Daily Journal on May 15, 22, and 29, and June 5, 2024. However, the proof of publication does not reflect, and E. Mansi offers no evidence or information to show, that the summons was published in compliance with section 415.50. E. Mansi also fails to offer any reasoned argument to show why a summons was not required. For these reasons, the proof of publication filed by E. Mansi did not create a rebuttable presumption of proper service nor has E. Mansi met his burden to show strict compliance with the requirements for service of a summons by publication. (American Express, supra, 199 Cal.App.4th at p. 390; County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450.) Therefore, service of the petition in the manner described in the proof of publication did not result in the Court acquiring jurisdiction over Rim.

Upon further consideration of the application, information appearing in the opposing Rim declaration, and for all reasons discussed above, the Court will grant the motion to quash to the extent it seeks an order reconsidering and vacating the Publication Order. The Court will also, for additional reasons discussed above, order service of the petition by publication quashed.

In addition, as E. Mansi failed to, for all reasons discussed above, serve Rim in a manner prescribed under section 415.10 et seq., and to comply with the requirements of section 415.50, the Court’s jurisdiction over E. Mansi had not been established at the time the Court entered the July Orders. (Dill, supra, 24 Cal.App.4th at p. 1439; Code Civ. Proc., § 410.50, subd. (a).) For this reason, the July 2024 Minute Order, the July 2024 Order After Hearing, and the Arbitration Order are void. (American Express, supra, 199 Cal.App.4th at p. 387.) Therefore, the Court will also grant the motion to quash to the extent Rim requests that the Court vacate the July Orders based on defective service of the petition.

(2) The Mansi Motion

In support of the Mansi motion, E. Mansi submits the declaration of Matthew Mansi (M. Mansi), who is the son of E. Mansi. (M. Mansi Decl., ¶ 2.) M. Mansi states that he and E. Mansi were the co-managers of Aldersgate, who is a manager of SBC. (Id. at ¶¶ 2 & 7.) M. Mansi asserts that the arbitration agreement memorialized in the MOU was executed by E. Mansi, and that E. Mansi acted in this litigation, in his capacity and authority as the manager of Aldersgate. (Id. at ¶¶ 4-5 & 11; Exhs. 1 & 2.) M. Mansi further declares that E. Mansi passed away earlier this year leaving M. Mansi as the sole manager, and the appropriate individual to execute documents and prosecute proceedings on behalf, of Aldersgate. (Id. at ¶¶ 6-7.) For these reasons, M. Mansi contends that the name of the Petitioner in this action should be changed to Aldersgate. As further detailed above, Rim has filed an opposition to the Mansi motion.

To the extent the opposition of Rim to the Mansi motion contests the merits or raises objections other than those based on jurisdiction, there exists some question as to whether or not Rim has generally appeared in this action notwithstanding the defects in service of process further discussed above. (Code Civ. Proc., §§ 410.50, subd. (a) & 1014; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52-54 [general discussion of circumstances under which a party generally appears].)

In addition, available information and evidence submitted in support of and in opposition to the Mansi motion shows that on September 2, 2024, an arbitration award was ostensibly issued with respect to the dispute which is the subject of the petition and which Rim contends was obtained by E. Mansi by default and is invalid. (See Mansi Motion at p. 5; Opp. Mansi Motion at p. 4.) Rim further asserts that he intends to file in this action a motion to vacate the arbitration award issued purportedly by default on September 2, 2024. (Opp. Mansi Motion at p. 4, ll. 2-4.)

Under the totality of the circumstances present here, and in the interests of judicial efficiency considering that both the Court and the parties require an appropriate procedural record on which to proceed, the Court will continue the hearing on the Mansi motion and require the parties to submit supplemental briefing addressing the following: whether or not deficiencies in service of process have been cured or Rim has consented or intends to consent to the jurisdiction of the Court; whether or not the issues presented in the Mansi motion are or will become moot, and why; to the extent the issues presented in the Mansi motion are not or will not become moot, what, if any, issues presented in the Mansi motion remain to be determined and why; and, any other issues that remain to be determined with respect to the order sought in the Mansi motion. To the extent the deficiencies in service of process are cured and the parties resolve the issues raised in the Mansi motion or that motion is moot, the Court expects that E. Mansi will withdraw the motion in a timely manner sufficiently prior to the continued hearing. Furthermore, apart from the supplemental briefs authorized herein, the parties shall not be permitted to file any additional papers in support of or in opposition to the Mansi motion.

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