Dimar Enterprises, Inc. v. Mahmood

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or suppressed fact; and 5. as a result of the concealment or suppression of the fact, the plaintiff sustained damage. Nissan Motor Acceptance Cases, (2021) 63 Cal.App.5th 793.

In the case of alleged concealment, the specificity obligation is lessened. (Alfaro v. Community Housing Impr. Syst. (2009) 171 Cal. App.4th 1356). Here, plaintiff has met the pleading standard for fraud by concealment. The operative complaint sufficiently alleges concealed or suppressed material facts. (Sec. Amd. Compl. ¶¶ 20-25, 28-29, 31-38.) As such, the demurrer to the fourth cause of action is OVERRULED.

Defendants shall answer the second amended complaint within ten days.

The case management conference is continued to February 22, 2027 at 9:00 a.m.

The order to show cause is discharged.

Sauter shall give notice of this ruling.

51. Dimar Specially appearing defendant Cassandra Elizabeth Johnston’s Enterprises, motion to set aside default and default judgment, and to Inc. v. dismiss for failure to serve, is GRANTED. (See Code Civ. Proc., Mahmood §§ 473, subd. (d), 583.210, 583.250; California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 214-215 (Hoehn).) 2020- 01137619 The court ORDERS the following vacated and set aside: (1) Johnston’s default entered on 6/12/24, and (2) the default judgment entered on 11/22/24 as to Johnston only.

The court further ORDERS plaintiff Dimar Enterprises, Inc. dba Drymaster’s operative fourth amended complaint (4AC) dismissed without prejudice as to Johnston only.

Code Civ. Proc., § 473, subd. (d). Johnston has shown that her default and the default judgment entered against her are void due to improper service. (See Code Civ. Proc., § 473, subd. (d) [“The court ... may, on motion of either party after notice to the other party, set aside any void judgment or order.”]; see also California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 214-215 (Hoehn).)

Plaintiff’s proof of service of the summons and operative complaint on Johnston shows service was effected by a registered process server. (Krause-Leemon Decl. at Ex. D.) A proof of service by a registered process server that complies with the applicable statutory requirements creates a

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rebuttable presumption of proper service. (Floveyor Int’l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; accord American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see Evid. Code, § 647.) This rebuttable presumption does not arise here, however, because the subject proof of service does not comply with the requirements for proof of substitute service on an individual such as Johnston. (See Code Civ. Proc., § 417.10, subd. (a), Jud. Council of Cal., comments [“Substituted Service on Natural Person” requirements].)

Proof of substantive service on an individual must state or show, among other things, “that the place of delivery was the dwelling house, usual place of abode, or usual place of business of [the] person” being served, and “that the person in whose presence the papers had been left was determined after careful inquiry by the process server to be a competent member of the household or a competent person apparently in charge of such business, as the case may be, who was at least 18 years of age....” (Ibid.; see id., § 415.20, subd. (b); Chinese Theater, LLC v.

Starline Tours USA, Inc. (2025) 115 Cal.App.5th 1048, 1057.) Here, the proof of service shows the process server knew the property to be an “Airbnb,” identifies the recipient merely as an “Airbnb Occupant,” and fails to state any facts connecting the “Airbnb Occupant” to Johnston. (See Krause-Leemon Decl. at Ex. D.)

Johnston’s declaration confirms that service was invalid in any event. Specifically, Johnston declares she is a resident of New York, has never been a resident of California, has never resided at 1406 W. Janeen Way, Anaheim, CA 92801 (property), and that this property has never been her residence, place of business, or usual place of abode, either in February 2024 or at any time. (Johnston Decl. ¶¶ 1-2, 6, 10- 13.) She further declares she does not know anyone named Nick Nieedham and has never authorized anyone by that name to accept service for her at any time. (Id. ¶ 10.)

This shows the process server did not leave the summons and operative complaint with a “competent member of the household or a person apparently in charge of [Johnston’s] office, place of business, or usual mailing address,” but rather, a random Airbnb guest with no connection to Johnston. (Code Civ. Proc., § 415.20, subd. (b).)

“ ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction....’ [Citations.]” (Hoehn, supra, 17 Cal.5th at p. 214.) A defendant is under no duty to respond to a defectively served

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summons, even if the defendant has actual notice of the action. (Taylor-Rush v. Multitech Corp. (1998) 217 Cal.App.3d 103, 110.) A fatally or defectively served summons will not confer personal jurisdiction over a defendant. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “ ‘Thus, a [default or] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citations.]” (Hoehn, at pp. 214-215, 225.)

Failure to serve within three years, Code Civ. Proc., §§ 583.210, 583.250. Code of Civil Procedure section 583.21 provides, in relevant part: “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) Code of Civil Procedure section 583.250 provides that if service is not made within three years, “[t]he action shall be dismissed by the court on its own motion or on motion of any person interested in the action....” (Id., § 583.250, subd. (a)(2).) Dismissal is mandatory. (Id., § 583.250, subd. (b).)

The three-year time period begins to run “after the action is commenced against the defendant,” regardless of whether that defendant is initially identified by name or as a “Doe.” (Code Civ. Proc., § 583.210, subd. (a); see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398 [“the plaintiff can ‘file[] a timely complaint [against a Doe defendant] under section 474.... From the time such a complaint is filed,’ under section 583.210, subdivision (a), [plaintiff] ‘has three years ... to identify ... the defendant,’ amend the complaint, and ‘serve [her] ..., effectively enlarging the ... limitations period for three years’ through the doctrine that the amended complaint ‘relates back’ to the original one”].)

Here, plaintiff has sued Johnston as “Doe 2.” (ROA No. 213 [Doe amendment to 4AC filed on 12/21/23].)

From the onset of this litigation and in every version of the complaint, plaintiff has named and sued “Doe 2” as an owner or “reputed” owner of the subject Anaheim property at 1406 W. Janeen Way, Anaheim, CA 92801. (3/10/20 Compl. ¶¶ 2, 5; 4/16/21 1AC ¶¶ 2, 5; 2/8/22 2AC ¶¶ 2, 7; 10/17/22 3AC ¶¶ 2, 7; 3/20/23 4AC ¶¶ 2, 8.)

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But Johnston was not an “owner” of and “ had no interest of any kind” in the subject Anaheim property until 6/3/22, when she purchased it from Mahmood. (Johnston Decl. ¶¶ 3-4, Ex. F.) Thus, the first version of the complaint that could have been referring to Johnston as “Doe 2” is the third amended complaint (3AC) filed on 10/17/22, since the prior versions of the complaint were filed before Johnston ever had any interest in the property. (See 10/17/22 TAC ¶¶ 2, 7.) Three years (1,095 days) from the filing of the 3AC on 10/17/22 was Thursday 10/16/25. (See Gov. Code, § 6803 [defining “ ‘[y]ear’ ” as “a period of 365 days” and stating “[t]he added day of a leap year, and the day immediately preceding, if they occur in any such period, shall be reckoned together as one day”].)

Indeed, even if the court were to calculate the three-year period from the 4AC, which indisputably names Johnston as Doe 2, three years (1,095 days) from the filing of the 4AC on 3/20/23 was Thursday 3/19/26. (See Gov. Code, § 6803; Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 398; see also 3/20/23 4AC ¶¶ 2, 8; ROA No. 213 [Doe amendment to 4AC].)

Both 10/16/25 and 3/19/26 have long since passed, and nothing in the record suggests plaintiff has served or attempted to serve Johnston again following the faulty substitute service on 2/23/24. Plaintiff has also not identified or demonstrated any statutory grounds for tolling. (See Code Civ. Proc., §§ 583.240 [statutory exceptions], 583.250, subd. (b) [“requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute”]; see also Opp., in passim.) As such, dismissal is mandatory. (Code Civ. Proc., § 583.250, subd. (b).)

Based on the foregoing analysis, plaintiff’s request for discovery is DENIED.

Request for judicial notice. Plaintiff’s request for judicial notice is GRANTED as to the “existence and contents [of the recorded documents], though not of disputed or disputable facts stated therein.” (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 924, fn. 1.)

Objections. Johnston’s objections to the supplemental declaration of plaintiff’s counsel are SUSTAINED as to objection Nos. 1-7, and otherwise OVERRULED.

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Johnston shall serve and file a formal order of dismissal for the court’s signature within 10 days.

Johnston shall give notice of all of the above. 52.

53. Elite MD, Defendants Amit Chandel and Focus Group CPA, Inc.’s Inc. v. Demurrer to the First Amended Complaint (“FAC”) is Chandel SUSTAINED.

2025- Defendants demur to the first and fourth causes of action in 01504466 the First Amended Complaint.

First Cause of Action – Professional Negligence

The elements of a claim for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.)

The FAC alleges Defendants breached a duty to Plaintiffs to keep their financial and business records confidential. (FAC, ¶ 39.) Plaintiffs do not allege any supporting facts regarding the purported disclosure, i.e., what, when, who or how. They also do not allege how the breach of confidentiality caused the $1,000,000 in damages.

Accordingly, the demurrer to the first cause of action is SUSTAINED.

Fourth Cause of Action – Breach of Fiduciary Duty

“A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is bound to act with the utmost good faith for the benefit of the other party.” (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 613.)

The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.)

“[B]reach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence” (Stanley v.