Altinex, Inc. vs. Breda

16. See also Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., 155 Cal. App. 381, 385 (1984).

Thus, the motion before the Court is simply a motion to set aside the default and default judgment, rather than a combined motion to set aside the default and default judgment and to quash service. See Strathvale Holdings v. E.B.H., 126 Cal. App. 4th 1241, 1249 (2005) (holding that a motion brought under Code Civ. Proc. § 473(d) is the proper procedure of direct attack against a default supported by evidence of service of process but challenged for lack of personal jurisdiction).

Subdivision (d) of section 473 provides that “[t]he court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.” The statute permits a void judgment or order to be set aside without any mention of a time limit. See Heidary v. Yadollahi, 99 Cal. App. 4th 857, 862 (2002). An order or judgment is void if a court “lack[s] fundamental authority over the subject matter, question presented, or party.” In re Marriage of Goddard, 33 Cal. 4th 49, 56 (2004).

Where, as here, the defendant challenges personal jurisdiction, “the plaintiff has the initial burden of ‘demonstrating facts justifying the exercise of jurisdiction.’” Strathvale Holdings v. E.B.H., supra, 126 Cal. App. 4th at 1250. If the plaintiff meets that burden, it then shifts to the defendant to show the exercise of personal jurisdiction would be unreasonable. Vons Companies, Inc. v. Seabest

Foods, Inc., 14 Cal. 4th 434, 476 (1996).

California's long-arm statute authorizes California courts to exercise jurisdiction on any basis not inconsistent with the Constitution of the United States or the Constitution of California. Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal. 4th at 444. A state court’s assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate “‘traditional notions of fair play and substantial justice.’” Id. at 444-445.

Personal jurisdiction may be either general or specific. Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal. 4th at 445. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are substantial, continuous, and systematic. Id. In such a case, “it is not necessary that the specific cause of action alleged be connected with the defendant's business relationship to the forum.” Id. at 445-446. Such a defendant’s contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction. Id. at 446.

If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits and the “controversy is related to or ‘arises out of’ a defendant's contacts with the forum.” Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal. 4th at 446.

The forum contacts necessary to establish specific jurisdiction generally a nonresident who has “purposefully directed” his or her activities at forum residents or who has “purposefully derived benefit” from forum activities or “ ‘purposefully avail[ed himself or herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Vons Companies,

Inc. v. Seabest Foods, Inc., supra, 14 Cal. 4th at 446. The requisite forum contact may also involve a nonresident defendant who “‘deliberately’ has engaged in significant activities with a State [citation] or has created ‘continuing obligations' between himself and residents of the forum.” Id.

In the declaration filed with the moving papers (ROA 52), defendant declares that he was born and grew up in Italy and then emigrated to Canada. He declares that he has never been a resident of California, has never conducted business or been employed in California, never owned any property in California, never voted in California and has never held any California licenses of any sort. Declaration, 2:15-17. He also declares that he did not travel to California during the negotiations for the sale of the assets of his company, Omni Brass. Declaration, 2:17-18.

In opposing the motion, plaintiff submits the declarations of Jack Gershfeld, Victoria Alayeva, and Vladi Khiterer, who are its CEO, employee project manager, and counsel, respectively. ROAs 61, 60, and 62.

In his declaration, Mr. Gershfeld declares that, between September 2021 through January 2023, he and defendant “engaged in intense and frequent communications via phone, e mail and in person in regards to the acquisition of Omni Brass by Altinex.” Gershfeld declaration, 2:2-26. He declares that when the defendant learned that he was located in Orange County, defendant told him that he had numerous customers in Orange County, that he maintained ongoing business relationships with them, and that he occasionally traveled to California to meet with them. Gershfeld declaration, 3:1-4. He additionally declares that, in October 2022, defendant approached him with a business proposal that was unrelated to Omni Brass and involved a joint venture for the manufacture and sale of a product in California. Gershfeld declaration, 5:5-11.

In her declaration, Ms. Alayeva declares that, between April 2022 through December 2022, she communicated directly with defendant regarding documentation for the purported product lines for Omni Brass. Alayeva declaration, 2:6-8.

She also submits copies of the emails and attachments to her declaration as Exhibit 4.

In his declaration, plaintiff’s counsel declares that, after retaining a private investigator in Canada to locate defendant’s residence, plaintiff was able to serve him with the summons and complaint under The Hague Convention. Khiterer declaration, 2:3-8. He also declares that he reviewed publicly available information about companies that defendant identified as customers, and found that several were located in California. Khiterer declaration, 14- 19. He additionally declares that defendant indicated to him that he wanted to be employed by plaintiff and that he negotiated an agreement by which plaintiff would be retained as a consultant on a part-time basis. Khiterer declaration, 4:14-24.

Defendant does not offer any additional evidence with his reply to the opposition, although he does submit written objections to the declarations submitted by plaintiff. Defendant contends both that plaintiff did not meet its burden of establishing facts supporting either general or specific jurisdiction over him and that exercise of personal jurisdiction would be unreasonable. He contends that he is “an elderly individual residing in Canada” and “should not be burdened with the expense of litigating against a California corporation on its home turf over a potential transaction initiated by Plaintiff but took place [sic] in Canada pursuant to the LOI [letter of intention.” Reply, ROA 66, 8:2-5.

Contrary to the arguments in the Reply, the evidence submitted by plaintiff is sufficient to show facts supporting specific personal jurisdiction over defendant. Through his communications and business discussions with plaintiff’s personnel and doing business with other California companies, plaintiff “purposefully directed” activities at California residents or purposefully availed himself of the privilege of conducting activities within California. The complaint, which contains causes of action for misrepresentation and violation of the UCL, arises out of those activities. Moreover, assertion of personal jurisdiction over defendant comports with notions of fair play and

substantial justice.

As a result, the Court cannot determine that the California does not lack personal jurisdiction over defendant such that the default judgment is void.

To the extent that defendant contends that the default judgment is void because it exceeds the amount of relief sought in the complaint, plaintiff concedes that the complaint only sought damages of $45,000, but denies that the judgment is void, citing Greenup v. Rodman, 42 Cal. 3d 822, 839 (1986). Plaintiff is correct; the cited case indicates that an amended judgment is the appropriate remedy where the amount of the default judgment exceeds that sought in the complaint.

Accordingly, the motion of specially appearing defendant Silvano Breda for an order setting aside the default and default judgment entered against him on the complaint of plaintiff Altinex, Inc., and quashing service of the summons and complaint is DENIED. The Court will, however, reduce the amount of the default judgment entered against defendant to $45,000 so that it does not exceed the amount of damages sought by the complaint.

The Court sustains defendant’s objections 1 and 2 to the Gershfeld declaration and objection 8 to the Khiterer declaration and overrules all other objections.

Plaintiff to give notice.

7. 30-2023-01363921- Before the Court are the following four (4) motions brought CU-WT-CJC by Plaintiff Karlina Manalese (“Plaintiff”) against Manalese vs. Las Defendant Las Flores Internet, LLC, dba Strikeworks Flores Internet, Solutions (“Defendant”): a Motion to Compel Further LLC Responses to Requests for Production (“MF-RFP”), Set Two, and Sanctions (ROA 224); a Motion to Compel Further Responses to Special Interrogatories (“MF-SROG”), Set Two, and Sanctions (ROA 228); an MF-RFP, Set Three, and Sanctions (ROA 259); and an MF-SROG, Set Three, and Sanctions (ROA 263).

The underlying complaint seeks damages for multiple