Judge: Cherol J. Nellon, Case: 22STCV22668, Date: 2023-05-22 Tentative Ruling

Case Number: 22STCV22668    Hearing Date: May 22, 2023    Dept: 28

Plaintiff Fernando Matiarena’s Motion for Service by Publication

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On July 13, 2022, Plaintiff Fernando Matiarena (“Plaintiff”) filed this action against Defendant Jose Vasquez (“Defendant”) for motor vehicle.

On February 21, 2023, Plaintiff filed a Motion for Service by Publication to be heard on May 22, 2023.

Trial is currently scheduled for January 10, 2024.

PARTY’S REQUESTS

Plaintiffs request that the Court grant leave to serve by publication, and to impose sanctions on Defendant totaling $560.00.

LEGAL STANDARD

CCP 415.50 provides that a summons may be served by publication if upon affidavit is appears to the court that the party served cannot with reasonable diligence be served in another proper manner that either 1) a cause of action exists against the party to be served OR 2) the party to be served has or claims an interest in real or personal property OR the relief demanded consists at least in part in excluding the party from any interest in the property.

DISCUSSION

Plaintiff alleges that Defendant is evading service. Plaintiff’s attorney provided an affidavit stating that he hired a process server to serve Defendant at his home address, taken from a police report on the subject incident. The process server made 5 attempts to effectuate service over the course of 3 weeks. Ex. A, the non-service report, indicates that there was never any indication of activity within the residence. Counsel then attempted to serve Defendant by mail, pursuant to CCP § 415.30. The mailed copy was not returned to counsel, but there has been no response or acknowledgement of receipt from Defendant.

The Court finds that Plaintiff has acted with reasonable diligence in attempting to serve Defendant. Plaintiffs assert a cause of action against Defendant; thus, under CCP § 415.50, Plaintiffs have met all requirements for service by publication. The Court grants the motion.

Plaintiff requests sanctions totaling $560.00 pursuant to CCP § 413.30(d), which provides that if a person mailed a copy of the complaint and summons failed to complete and return the acknowledgement form, they are liable for reasonable expenses incurred in serving or attempting to serve the party by another method permitted under the CCP. Plaintiff requests $500.00 in sanctions based on the estimated cost of publication in the Los Angeles Times and 1 $60.00 filling fee. The Court finds these requests reasonable and grants the request in full.

CONCLUSION

Plaintiff Fernando Matiarena’s Motion for Service by Publication is GRANTED. Plaintiff may file an Order for Publication.

Plaintiff Fernando Matiarena’s Request for Sanctions is GRANTED. Defendant is ordered to pay Plaintiff $560.00 in sanctions within 30 days of the hearing on the motion.

Counsel for Plaintiff is ordered to give notice of this ruling.

Counsel for Plaintiff is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.