Alexander Rowland et al v. Newco Capital Group LLC et al

Plaintiffs Lernalabs, Inc. and Alexander Rowland (collectively, “Plaintiffs’) counter that, because their Complaint alleges the Agreement is a loan in violation of California usury laws,

2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified. 3 Defendants acknowledge that this argument is a ground for demurrer under section 430.10. As section 430.10 does not provide authority to stay or dismiss a matter, and because the instant motion is not noticed as a demurrer, the Court only construes Defendants’ argument regarding a related New York action as an equitable factor in support of Defendants’ forum non conveniens argument and not for purposes of a demurrer.

and because California’s usury laws are unwaivable, the burden is on Defendants to show that litigating the claims in New York will not diminish in any way the substantive rights afforded under California law. (Opposition, pp. 2-3, citing Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147 and G Companies Management, LLC v. LREP Arizona, LLC (2023) 88 Cal.App.5th 342, 354.) Plaintiffs contend that Defendants have failed to meet their burden because Defendants do not address whether or not New York will diminish Plaintiffs’ invocation of protection of California’s policy against usury; instead, Defendants only attempt to argue the merits of the matter by arguing that the Agreement is a sale and not a usurious loan.

In Reply, Defendants argue that Plaintiffs have misstated the burden under Verdugo and that it is Plaintiffs who must first establish that a fundamental California policy is actually implicated and the claims depend on that policy. (Reply, p. 2.) Defendants argue that Plaintiffs have failed to meet that burden because they merely rely upon the allegations in their Complaint that the Agreement is a usurious loan, but they offer no evidence in support of those allegations, despite Defendants’ evidence attempting to show that the Agreement is not a loan.

The Court finds that Plaintiffs have the order of burden-shifting correct. Because their Complaint is based on an unwaivable right against usury, the burden starts with Defendants to show that enforcing the forum selection clause will not diminish the substantive rights afforded under California law. (See Verdugo, supra, 237 Cal.App.4th at 146-47; G Companies Management, LLC, supra, 88 Cal.App.5th at 355.)

“California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable. This favorable treatment is attributed to our law’s devotion to the concept of one’s free right to contract, and flows from the important practical effect such contractual rights have on commerce generally.” (Verdugo, supra, 237 Cal.App.4th at 146-47, internal quotations and citations omitted and cleaned up.) “Nonetheless, California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state’s public policy. [¶] The party opposing enforcement of a forum selection clause ordinarily bears the ‘substantial’ burden of proving why it should not be enforced. That burden, however, is reversed when the claims at issue are based on unwaivable rights created by California statutes. In that situation, the party seeking to enforce the forum selection clause bears the burden to show litigating the claims in the contractually-designated forum ‘will not diminish in any way the substantive rights afforded ... under California law.’” (Id. at 147, internal citations omitted and cleaned up.)

Defendants do not discuss, argue, or make any showing that “litigating the claims in [New York] will not diminish in any way the substantive rights afforded [Plaintiffs] under California law.” (Id. at 147; see generally Support Memo and Reply.) They have therefore failed to carry their burden.

When a court is considering the enforcement of a forum selection clause that would deprive a California resident of the protections of a fundamental public policy, the court does not engage in a weighing process of equitable doctrines such as forum non conveniens. (See G Companies Management, LLC, supra, 88 Cal.App.5th at 356.) Here, because Defendants failed

to meet their burden to show that enforcement of the New York forum selection clause will not diminish Plaintiffs’ rights under California law from protection against usury, it need not engage in a weighing of the additional equitable factors upon which Defendants’ motion is based.

Based on the foregoing, the motion is DENIED.

In The Matter of Catherine Marie Byers 26CV000081

PETITION FOR CHANGE OF NAME

TENTATIVE RULING: Notice has been properly published and no written objections have been filed. The petition is GRANTED without need for appearance.

LVNV Funding LLC v. Babatunde Agbabiaka 26CV000103

MOTION TO QUASH SERVICE OF SUMMONS

TENTATIVE RULING: The motion is GRANTED.

Defendant Babatunde Agbabiaka Jr (“Defendant”) moves, pursuant to Code of Civil Procedure, section 418.10, subdivision (a)(1), 4 to quash service of summons on the grounds that Defendant was not properly served.

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (§ 418.10, subd. (a)(1).)

Whether a defendant is subject to personal jurisdiction in a forum state involves two separate factors. First, the existence of a constitutionally-sufficient basis for personal jurisdiction over each defendant; and second, acquisition of such jurisdiction by service of process in accordance with statutory and due process requirements. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229; Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 612.) The only issue in dispute on the present Motion is the second factor – proper service of process.

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove ... the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413. Internal quotes omitted.)

Defendant claims that the proof of service (“POS”) shows the summons and complaint were left on a bench outside the property at 812 Danrose Dr, American Canyon, CA 94503.

4 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

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