Massachusetts Bay Commuter Railroad v. Yacoob

Filed 1/31/07  Massachusetts Bay Commuter Railroad v. Yacoob CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from an order of the Superior Court of Orange County, Robin Brandes-Gibbs, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

                        Law Office of Paul M. Konapelsky and Paul M. Konapelsky for Defendant and Appellant.

                        Cadden & Fuller, Thomas H. Cadden, S. Judy Hirahara, and Barry S. Josephson for Plaintiff and Respondent. 

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                        Defendant David Yacoob appeals from the trial court's order denying his motion to vacate entry in California of a sister state judgment obtained by plaintiff Massachusetts Bay Commuter Railroad Company, LLC.  We affirm the order.

FACTS AND PROCEDURAL BACKGROUND

                        In October 2004, plaintiff filed a verified complaint against Yacoob, the defendant herein, Yacoob's corporation Quinn International Canada, S.A. (Quinn), and other defendants in Massachusetts alleging various claims.  Defendant is the president of Quinn.  Against Quinn, plaintiff alleged causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing.  Against all defendants, plaintiff alleged fraudulent inducement and misrepresentation claims. 

                        According to the complaint, commencing in June 2003, Quinn and a company named Motive Power Components, Inc. (Motive) entered into agreements with plaintiff to produce and ship over 42,000 railroad ties to plaintiff in exchange for payment of $1,348,460.  By August, plaintiff had paid $270,000 to Motive, who in turn wired the funds to Quinn's account in Canada.  The railroad ties were to be shipped beginning in September from South America to plaintiff in Massachusetts, but by the end of the month, no ties had been received.  Nor had plaintiff receive any railroad ties by April 2004, despite representations the production of 30,000 railroad ties were complete, available for shipment, and would be received by plaintiff within weeks.  Quinn asked for an additional payment of $127,000 for 7,200 railroad ties.  Plaintiff agreed and Quinn promised the order of over 42,000 ties would be substantially completed within five weeks.  Plaintiff did not receive any railroad ties during that period.  In May 2004, Quinn requested that plaintiff enter into an escrow agreement to secure additional payments.  Plaintiff agreed and set an additional $625,000 aside.  In exchange, all 42,000 railroad ties were to be shipped no later than the end of September.  If that did not occur, the agreement would terminate.  Defendant signed the escrow agreement as President of Quinn.  Plaintiff never received the railroad ties.

                        Plaintiff attempted several times to personally serve defendant but was unsuccessful.  Ultimately, process servers left a copy of the summons and complaint in the mailbox at defendant's residence located at 69 Thorndale Crescent, Hamilton, Ontario and mailed a copy of the documents to the same address.  Counsel for plaintiff also sent a copy of the documents to defendant at his residential address located at 10912 Cherry Hill Drive, Santa Ana, California.  The package was returned to counsel's office with the words, â€