Judge: Blaine K. Bowman, Case: 37-2022-00042630-CU-PO-NC, Date: 2024-01-05 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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SOUTH BUILDING TENTATIVE RULINGS - January 04, 2024
01/05/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Blaine K. Bowman
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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00042630-CU-PO-NC DERVIC VS. THE SALMAN AND ELAINE RABIE FAMILY TRUST [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 11/27/2023
The Motion for an Order Compelling a Response to Deposition Subpoena for Business Records from Third Party Stone House Development Inc. brought by defendant/cross-defendant Taylor Trim & Supply Inc. (Taylor) is DENIED without prejudice for lack of notice.
The instant discovery motion pertains to a deposition subpoena propounded on a third-party to this lawsuit. That third-party is Stone House Development Inc. (the Third-Party). As a non-party, the Third-Party does not presently have an address of record on-file in this lawsuit.
As to the initial service of the subpoena, the evidence that has been submitted does not establish that the subpoena was properly served on the Third-Party. Going through the evidence that has been provided, there is one piece of evidence in the file indicating that the subpoena was mailed and electronically served on the parties to this lawsuit (ROA 58, Ex. A, PDF pp. 15-16), but the proof of service as to serving the third-party appears to be blank (ROA 58, Ex. A, PDF p. 14). There is another piece of evidence in the file that demonstrates service on one 'Vicki Colla' who is identified therein as an 'employee.' (ROA 58, Ex. B, PDF p. 18.) The document purports to be evidence of personal service, but seems to have a mismatch between the person served ('Vicki Colla – employee') and the party served ('Agent for Service of Process: Jennifer Morgan Frazier, Stone House Development, Inc.'). (ROA 58, Ex. B, PDF p. 18.) It thus appears that the proof of service in question is actually evidence of substituted service on Jennifer Frazier (through employee Vicki Colla) and that Jennifer Frazier is the 'agent for service of process' for the Third-Party. That piece of evidence indicates that the service was made at the address of: 7668 El Camino Real #104-280 Carlsbad, CA 92009-7932 Nothing in the record clearly connects that address to the Third-Party or to Jennifer Frazier. In other words, on the evidence provided there no reasonable way to make the connection that Vicki Colla is, indeed, an agent/employee of Jennifer Frazier and/or the Third-Party.
In an effort to bridge the gap of this otherwise unopposed motion and resolve the issue, pursuant to Evidence Code § 451, et seq., this Court takes judicial notice of the publicly-available online records on file with the California Secretary of State for the entity known as 'Stone House Development, Inc.' According to those records, the following three addresses have some connection to the Third-Party: Principal Address Calendar No.: Event ID: TENTATIVE RULINGS
3055100 CASE NUMBER: CASE TITLE: DERVIC VS. THE SALMAN AND ELAINE RABIE FAMILY TRUST 37-2022-00042630-CU-PO-NC 310 N. Andreasen Dr.
Escondido, CA 92029 Mailing Address 1835A S. Centre City Pkwy. #263 Escondido, CA 92025 Agent for Service of Process Jennifer Morgan Frazier 505 Brotherton Rd Escondido, CA 92025 This information connects the gap as to the fact that Jennifer Frazier is, indeed, the agent for service of process for the Third-Party corporation, but it does not establish that the address of 7668 El Camino Real #104-280, Carlsbad, CA 92009-7932 is the proper address for serving Ms. Frazier. And the proof of service as it stands does not reflect personal service on Ms. Frazier, but, rather some sort of substituted service on her apparent 'employee.' The problem, however, is that it is not entirely apparent that Ms.
Frazier, or the Third-Party corporation, have employees since the Secretary of State's records indicate that the Third-Party corporation was terminated on May 26, 2021 – more than two years ago. The typical wind-down of a corporation means there should no longer be employees.
The best guess that can be made on this evidence would be that perhaps Ms. Frazier, who was the Agent for Service of Process while the Third-Party corporation was in operation has perhaps moved-on and found other employment and Vicki Colla is an employee located in the new office where Ms. Frazier works. However, to reach that conclusion too much speculation is required. Moreover, even if the judicially-noticeable information about the status of the Third-Party corporation were not to be taken or considered, the problem still exists that there are not sufficient facts in the existing record to establish that service on Vicki Colla amounts to substituted service on Jennifer Frazier or that service on Jennifer Frazier amounts to service on the Third-Party corporation.
Finally, the Court notes yet another address for Jennifer Frazier that as used in certain correspondence that is provided in the evidentiary record: Stone House Development, Inc.
ATTN: Jennifer Morgan Frazier Agent for Service of Process 5963 La Place Ct.
Carlsbad, CA 92008 (ROA 58, Ex. C, PDF p. 20.) Attached to this declaration are some exhibits, one of which is a Notice to Consumer or Employee. While that document identifies that Jennifer Frazier is the Agent for Service of Process for the Third-Party corporation (though it does not make that connection under penalty of perjury), the proof of service of that document is, again, blank. (ROA 58, Ex. C, PDF p. 31.) All of the above analysis is with respect to service of the subpoena – not of the instant motion. There is a separate proof of service on file as to providing notice of the motion to the Third-Party corporation, but that notice indicates two types of service. The first is service by mail on Jennifer Frazier. (ROA 57, PDF pp. 8-9.) However, again, this Court has no way of verifying that the mailing address used for Ms. Frazier is, indeed, an acceptable mailing address since Ms. Frazier does not have an address of record on file with the Court – having not appeared in this action. As such, the service by mail is insufficient without an acknowledgment of receipt from Ms. Frazier. The second method of service is labeled 'personal service,' but there is insufficient information in the proof of service to establish that personal service of the moving papers was made on Ms. Frazier. Indeed, the form-style proof of service document does not even have a check-box for personal service, it only has standard service language for service by facsimile, electronic service, or mail. (ROA 57, PDF p. 8.) Proof of personal service requires additional Calendar No.: Event ID: TENTATIVE RULINGS
3055100 CASE NUMBER: CASE TITLE: DERVIC VS. THE SALMAN AND ELAINE RABIE FAMILY TRUST 37-2022-00042630-CU-PO-NC identifying information like who hand-delivered the documents, where they were hand delivered, the date and time they were hand delivered, a description of the person served, etc. (See ROA 58, Ex. B, PDF p. 18.) Moreover, given the discrepancy in the prior purported personal service, which appears to have really been substituted service (see ROA 58, Ex. B, PDF p. 18), the Court is not inclined to indulge or overlook the discrepancies in the representation of 'personal service' when it is not accompanied by the proper information (ROA 57, PDF p. 9).
Based on the foregoing, there is insufficient evidence on file to establish that either the instant motion has been properly noticed or that the underlying subpoena was properly served – and both are required prerequisites for granting what otherwise appears to be an unopposed motion.
Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.
Calendar No.: Event ID: TENTATIVE RULINGS
3055100