Lawzilla Additional Information: Defendants for these matters were represented by attorney Trevor Zink

17-CIV-04681 KATALIN BUTTLER VS. INTERSTATES VANLINES, LLC, ET AL.

KATALIN BUTTLER INTERSTATES VANLINES, LLC
DAVID S. HENSHAW TREVOR ZINK

INTERSTATES VANLINES, LLC AND NICOLAE GRECU’S MOTION TO QUASH SERVICE OF SUMMONS AND MOTION TO DISMISS TENTATIVE RULING:

Defendants Nicolae Grecu’s and Interstates Vanlines, LLC’s (“IVL”) (collectively, “Defendants”) Motion to Quash Service of Summons, and to Dismiss, is ruled upon as set forth below.

Service of Summons/Complaint

As to both Defendants Grecu (individually) and IVL, the motion to quash/dismiss on grounds the Summons and Complaint were not properly served is DENIED. As to IVL, Defendants’ motion do not even discuss or dispute proper service on IVL. The IVL Proof of Service states that Nicole (sic) Grecu, as the registered agent of the LLC, was personally served. Defendants do not deny that Mr. Grecu is the LLC’s registered agent for service of process, or that he personally received the papers at the time of service, and consequently, immediately called his attorney. The Court finds service on IVL was effective.

As for Mr. Grecu, the Proof of Service states the Summons and Complaint were left, on 11-11-17, on the doorstep of Grecu’s residence. This is consistent with Grecu’s declaration, in which he concedes he was home at the time the process server appeared at his door, but refused to open the door because, he contends, the process server did not identify himself. Grecu’s declaration is somewhat inconsistent with the IVL Proof of Service, which states that the process server spoke to Grecu through the door and identified the papers being dropped at the door. Even if Grecu’s version of the facts is believed, it is undisputed that (a) the process server appeared at Grecu’s door (residence) in Florida with the service papers for both Grecu and IVL, (b) Grecu was home at the time, and was aware of the process server’s presence, although he refused to open the door, and (c) the Summons and Complaint were left on the doorstep. Nor has Grecu rebutted the statement on IVL’s Proof of Service that the process server orally told Grecu what the papers were.

Further, there is no dispute that Grecu (in fact, both defendants) received immediate, actual notice of the lawsuit. Grecu states that after the process server left, Grecu opened the door, reviewed the papers, and realized both he and IVL had been sued in California. He then immediately contacted his attorney. Given the above facts/evidence, the Court finds that the service on Grecu was effective. See Trujillo v. Trujillo (1945) 71 CA2d 257, 260 (where process server tells the reluctant defendant that he or she is being served with process, and leaves the papers as close as possible to the defendant, service is valid notwithstanding the defendant’s refusal to accept); Crescendo Corp. v. Shelted, Inc., 267 Cal.App.2d 209, 212 (1968) (personal service usually contemplates actual delivery. But the person on whom service is sought may not, by merely declining to take the document offered, deny the personal service on the ground of lack of delivery, where under the circumstances it would be obvious to a reasonable person that a personal service was being attempted.”).

Personal jurisdiction

Defendants Grecu’s and IVL’s motion to quash/dismiss for lack of personal jurisdiction is ruled upon as follows:

As to Defendant IVL, the motion to quash/dismiss for lack of personal jurisdiction is DENIED. “Interstates Vanlines” (IVL), as the name suggests, is a self-described “Professional Interstate Moving Service” that advertises it can personally deliver its customers’ belongings across the country to California as part of a “white-glove” delivery service. Here, IVL provided Plaintiff with two contract documents (a Binding Estimate and a Bill of Lading), in which IVL contracted/agreed to deliver Plaintiff’s personal belongings to Plaintiff’s home in Menlo Park, Ca, and unload the goods at her property. The fact that IVL may have subcontracted/coordinated the move through Defendant Leo United does not deprive the Court of personal jurisdiction over IVL. This lawsuit arose directly from that contract. The Court has specific jurisdiction over IVL as a result of it taking intentional acts to reach out to California and purposefully avail itself to benefits of conducting business within California.

As to Defendant Grecu, individually, the motion to quash/dismiss for lack of personal jurisdiction is GRANTED. Although Defendants are the moving parties on this motion, the burden of proof is on Plaintiff to establish personal jurisdiction by a preponderance of the evidence. Mihlon v. Sup.Ct. (1985) 169 Cal.App.3d 703, 710. Jurisdiction must be shown as to each defendant. Calder v. Jones (1984) 465 US 783, 790. Jurisdiction over an entity does not establish jurisdiction over corporate officers, directors, agents, employees, etc.; rather, each defendant’s “contacts” with California must be evaluated separately.

Id. Co-conspirator allegations do not establish jurisdiction over an alleged co-conspirator. In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 113. Here, Plaintiff has not met her burden of demonstrating personal jurisdiction over Grecu. Plaintiff’s declaration and opposition papers scarcely mention Grecu, except for the discussion of service of process. The unverified Complaint also hardly mentions Grecu, except for the alter ego allegations, which is not evidence. Plaintiff does not contend she ever spoke to Grecu. It does not appear Grecu had any personal involvement in this incident whatsoever, except for the fact that he owns IVL, which alone does not confer jurisdiction. His declaration states he has never been to California. Grecu Decl., ¶1. For these reasons, the Court grants Grecu’s motion to quash/dismiss for lack of personal jurisdiction. The lawsuit as to Grecu, individually, is dismissed without prejudice.

Venue/forum clause

IVL’s motion to quash/dismiss on grounds the IVL Bill of Lading includes a Florida venue/forum selection clause is DENIED. It is undisputed that the “Binding Estimate” Plaintiff received from IVL prior to the move, which she had time to review before signing, did not have a venue/forum selection clause. The venue clause appears only in the Bill of Lading. Plaintiff’s 8-6-18 declaration states she never received/saw the Bill of Lading until the day the truck arrived to pick up her belongings, and only after her belongings had been loaded onto the truck. She states she was then presented, for the first time, with the Bill of Lading that has the venue clause, and which required that she pay significantly more than she previously agreed. Plaintiff states that she called IVL to protest, and “was told that my belongings would be held in storage until I signed several contracts, including the Bill of Lading Contract and Order for Service…” ¶ 11. She states she felt she had no choice but to sign the documents. Id. While Defendants characterize her declaration as “self-serving,” they offer no evidence disputing Plaintiff’s version of events.

Courts may refuse to enforce an “unreasonable” forum-selection clause. The reasonableness is determined by considering, among other factors, (a) whether the contesting party’s consent was obtained by fraud or overreaching, and (b) whether the contesting party had adequate notice of the provision. See Carnival Cruise Lines, Inc. v. Shute (1991) 499 U.S. 585, 590. Given that Defendants offer no evidence admissible disputing Plaintiff’s version of events that led to her signing the Bill of Lading, the Court finds the venue clause was obtained through unfairness/overreaching, and should not be enforced.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.