Case Name:   CCF RPP Middlefield, LLC  v. ForeVIVA Medical Clinique, LLC, et al.

Case No.:       1-13-CV-254660

 

This is an action for breach of a commercial lease agreement.  On or about April 29, 2013, defendant ForeVIVA Medical Clinique, LLC (“ForeVIVA”) leased Suite 100 of the building at 4151 Middlefield Road, Palo Alto, California 94303 (the “Building”) from plaintiff CCFRPP Middlefield, LLC’s (“Plaintiff”) predecessor.  (See Complaint, ¶¶ 2, 5.)  Plaintiff purchased the Building on or about August 30, and was assigned ForeVIVA’s lease.  (Complaint, ¶ 6.)  ForeVIVA never took possession of Suite 100 or paid the last month’s rent and security deposit required by the lease. (Complaint, ¶ 9.)  On or about September 4, ForeVIVA notified Plaintiff that—although it was paying rent owed for other space it was leasing in the Building—it would not take occupancy of Suite 100 or perform its obligations under the lease.  (Complaint, ¶ 10.)

 

Plaintiff initiated this action for breach of contract to recover its damages for breach of the lease on October 16, 2013, naming ForeVIVA and several Doe defendants in its complaint.  On February 4, 2014, Plaintiff amended its complaint to name Does 1-5 as Omnia Investment Group, Inc., Omnia Investments and Co., Biosylx Investment, Biosylx Investment and Commercials, and Manar Zarroug (“Zarroug”), respectively (collectively, the “Doe Defendants”).  Currently before the Court is the Doe Defendants’

motion to quash service of the summons and complaint on the ground that the Court lacks personal jurisdiction over them because they have insufficient contacts with California and were improperly served.

 

The Doe Defendants’ request for judicial notice is GRANTED.  The proofs of service, copies of which were filed by Plaintiff with the Court on February 27 and 28, are court records relevant to the issues to be decided in connection with this motion.  (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4^th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

 

The Doe Defendants’ objections to paragraphs 3-5 of the declaration of Razmig Bolodian are OVERRULED.  While the Doe Defendants object that the web site pages at issue reflect hearsay, they do not explain their objection or state that they did not publish the web site at issue.  Consequently, the Court will consider statements on the web site as party admissions.  (See Evid. Code, § 1220; In re Hydroxycut Marketing and Sales Practices Litigation (S.D. Cal. 2011) 810 F.Supp.2d 1100, 1115 [statements made by party on web site are party admissions].)  In addition, the Doe Defendants’ objection on the basis of authentication is unavailing given that the web site pages are self-authenticating as computer printouts.  (See Evid. Code, § 1552, subd. (a); Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1573, fn.2.)

 

The Doe Defendants’ hearsay objections to paragraphs 6-9 of Mr. Bolodian’s declaration are SUSTAINED.  As urged by the Doe Defendants, the evidence presented at paragraph 6 and corresponding Exhibit 3 is hearsay given that the statement at issue was made by Plaintiff’s accountant and Plaintiff asks the Court to assume its truth.  (See Evid. Code, § 1200.)  The evidence presented at paragraph 7 and corresponding Exhibit 4 is also hearsay and is not a party admission given that it was not published by the Doe Defendants themselves.  (See Newsguy, Inc. v. Yomtobian (N.D. Cal.Dec. 20, 2004) No. C 04–00811 CRB, 2004 WL 2944051, *2 [registration record indicating that defendant offered a particular domain for sale is inadmissible hearsay].)

 

As to paragraphs 8 and 9 and corresponding Exhibits 5 and 6, Plaintiff has not laid any foundation that would bring these documents within an exception to the hearsay rule such as the business or official records exception, having provided only Mr. Boladian’s statement that he obtained them from the Internet with no information concerning how or why the documents were prepared.  (See Evid. Code, §§ 1271 [business record of act, condition, or event is not made inadmissible by the hearsay rule if, among other conditions, the custodian or other qualified witness testifies to its identity and the mode of its preparation]; 1280 [writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule if all of the following applies: (a) the writing was made by and within the scope of duty of a public employee; (b) the writing was made at or near the time of the act, condition, or event; and (c) the sources of information and method and time of preparation were such as to indicate its trustworthiness]; see also Pruett v. Burr (1953) 118 Cal.App.2d 188, 201-202 [interdepartmental memoranda did not fall within official records exception to the hearsay rule].)

 

Plaintiff’s request for judicial notice of Exhibit 6 to Mr. Boladian’s declaration is DENIED.  While Evidence Code section 452, subdivision (b) permits judicial notice of regulations and legislative enactments, Exhibit 6 is a report by staff for the City of Palo Alto Architectural Review Board to the Board comprising a recommendation of approval of an application, and is not a regulation, enactment, or action by the Board.

 

The motion to quash is GRANTED.

 

It is unclear whether Plaintiff contends that the exercise of general or merely specific personal jurisdiction would be proper in this case as to Zarroug.  However, the evidence submitted by Plaintiff is inadequate to support the exercise of general personal jurisdiction.  At most, the contacts presented by Plaintiff indicate Zarroug’s past and “rare” continuing physical presence in California and his use of Suite 102 in the Building as a mailing address.  (See Serafini v. Super. Ct. (Khadir) (1998) 68 Cal.App.4^th, 78 and 80 [contacts with California must be systematic and wide-ranging to support general personal jurisdiction; past contacts do not support the exercise of jurisdiction].)

 

With respect to specific personal jurisdiction, Plaintiff seems to contend that Zarroug’s contacts with California are related to his work with entities related to ForeVIVA[1] and that Zarroug held himself out as an agent for ForeVIVA by signing the lease for Suite 102 in the Building on its behalf.  The Court notes that Zarroug also signed the lease for Suite 100, the lease at issue in this action, on behalf of ForeVIVA.  (See Complaint, Ex. 1 [lease for Suite 100]; Zarroug Decl. ISO Motion to Quash, ¶ 6 [stating that Zarroug executed the lease for Suite 100].)  However, even actions taken by Zarroug in his capacity as an officer or director are relevant to the exercise of jurisdiction over him as an individual only if the actions were ones for which Zarroug would be personally liable, i.e., tortious actions of a sort which are not alleged here, given that Plaintiff’s claims sound in contract.   (See Seagate Technology v. A. J. Kogyo Co. (1990) 219 Cal.App.3d 696, 703-704 [officer may be subject to jurisdiction due to potential tort liability, but not on the basis of corporate acts that could not be imputed to him; “An act taken by a corporate officer may subject the officer to in personam jurisdiction[, but] [t]he act must be one for which the officer would be personally liable and the act must in fact create contact between the officer and the forum state. (For example, no personal contact would result from doing nothing more than ratifying an act taken by the corporation or by another corporate officer.)”]; Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 113 [jurisdiction existed over nonresident officers who participated in tortious acts directed at California, but not over officers uninvolved in tortious conduct].)  Zarroug’s mere investment in ForeVIVA or related entities would not be enough to subject him to jurisdiction in his individual capacity  (see Sacramento Suncreek Apartments, LLC, v. Cambridge Advantaged Properties II, L.P. (2010) 187 Cal.App.4th 1, 10 [passive investment in entity that operated apartment building did not subject investors to personal jurisdiction]).  Thus, the mere facts that Zarroug signed the lease at issue on behalf of ForeVIVA and has some relationship to ForeVIVA are inadequate to establish jurisdiction over him individually, given that there is no indication that he would be personally liable for the obligation undertaken by ForeVIVA with respect to the lease.

 

The remaining Doe Defendants are Omnia Investment Group, Inc., Omnia Investments and Co., Biosylx Investment, and Biosylx Investment and Commercials.  The Doe Defendants indicate that the correct identity of Biosylx Investment, and Biosylx Investment and Commercials is Biosylx Investment and Broker, LLC, and the true identity of Omnia Investment Group, Inc. and Omnia Investments and Co. is Omnia Investments and Company Representation.  The Doe Defendants presented evidence that these entities, who filed the instant motion to quash, are based in Abu Dhabi.  Plaintiff contends that the names of the Doe Defendants should be “corrected” to reflect that the Doe Defendants comprise the two entities identified by Defendants along with “Omnia Ventures, Inc.” and, possibly, “Biosylx.”  (Opp. at p.2 , fns. 1 and 2.)  However, Plaintiff cites no authority for the proposition that the Court should “correct” its pleading to name entirely new entities such as “Omnia Ventures, Inc.” and “Biosylx.”  These entities were not named or served in this action, and the Court consequently declines to consider any argument concerning whether jurisdiction over any such entities would be proper.

 

As to the named Omnia entities, Plaintiff contends that the “Omnia Ventures” web site establishes that “Omnia” has a number of contacts with California, including its ownership of ForeVIVA.  However, the web site clearly uses the general term “Omnia” to refer to “Omnia Ventures, Inc.” or some entity other than Omnia Investments and Company Representation, given that it states that “[i]n 2010, Omnia expanded its presence in Abu Dhabi by incorporating Omnia Investments and Companies Representation.”  (Boladian Decl., Ex 1, “History”.)  Plaintiff also asserts that “Omnia Investment and Companies” once made a rent payment on behalf of ForeVIVA, but this assertion is based on hearsay.  Consequently, Plaintiff offers no competent evidence that Omnia Investments and Company Representation (or Omnia Investment Group, Inc., or Omnia Investments and Co.), as opposed to Omnia Ventures, Inc. or any other Omnia entity, has any contact with California or relationship to ForeVIVA.

 

Finally, the only evidence offered by Plaintiff with respect to any Biosylx entity is a statement on the “Omnia Ventures” web site indicating that “Omnia” founded and owns a controlling position in “Biosylx” and the hearsay statement by Plaintiff’s accountant indicating that “Biosylx Investment and Commercial” once made a rent payment on ForeVIVA’s behalf.  Consequently, Plaintiff has not introduced any competent evidence linking any Biosylx entity to ForeVIVA or to California.

 

The Court will prepare the order.