Judge: Daniel M. Crowley, Case: 21SMCV00182, Date: 2023-04-20 Tentative Ruling
Case Number: 21SMCV00182 Hearing Date: April 20, 2023 Dept: 207
Background
This action deals with a sale-leaseback agreement of a real property located at 25 Beverly Park Circle, Beverly Hills, California 90210. Defendant and Cross-Complainant 25 Beverly Park Circle PropCo, LLC (“Cross-Complainant”) asserts claims in this litigation affecting title to the Property. Cross-Complainant now moves for an order allowing it to serve Cross-Defendant Tim Leissner (“Leissner”) by publication, as well as unknown Doe cross-defendants. Cross-Complainant’s motion is unopposed.
Legal Standard
Under Code Civ. Proc. § 415.50, a summons may be served by publication if upon affidavit it appears to the satisfaction of the Court that: (1) the party to be served cannot with reasonable diligence be served in another manner; and (2) a cause of action exists against the party upon whom service is to be made or the party to be served has an interest in property that is subject to the jurisdiction of the court or the relief demanded in the action would exclude the party from any interest in the property. Strict compliance is required to obtain leave to serve by publication. (County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450.) Further, constitutional principles of due process of law require that service by publication be used only as a last resort. (Watts v. Crawford (1995) 10 Cal.4th 743, 749 fn. 5.)
The term “reasonable diligence” denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. (Id.) The basic test is whether the affidavit demonstrates that the plaintiff took those steps which a reasonable person who truly desired to give notice would have taken under the circumstances. (Donel, Inc. v. Badalian (1978) 87 Cal. App. 3d 327, 333.) This involves a number of honest attempts to learn defendant’s whereabouts or address by inquiry of relatives, by investigation of appropriate city and telephone directories, voter registries, and assessor's office property indices situated near the defendant's last known location generally are sufficient. (Watts, supra, 10 Cal.4th at 749 fn. 5.) These are the likely sources of information, and consequently must be searched before resorting to service by publication. (Id.) Before allowing a plaintiff to resort to service by publication, the Courts necessarily require the plaintiff to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice. (Id.)
“Diligence is a relative term and must be determined by the circumstances of each case. The question is one for the trial court in the first instance.” (Vorburg v. Vorburg (1941) 18 Cal.2d 794, 797.) “If the facts set forth in the affidavit have a legal tendency to show the exercise of diligence on behalf of the plaintiff in seeking to find the defendant within the state, and that after the exercise of such diligence [she or] he cannot be found, the decision of the judge that the affidavit shows the same to his satisfaction is to be regarded with the same effect as is [her or] his decision upon any other matter of fact submitted to [her or] his judicial determination.” (Id.)
Analysis
1. Cross-Defendant Leissner
Cross-Complainant seeks an order permitting service on Cross-Defendant Leissner by publication. Cross-Complainant indicates it has previously attempted to service Leissner by mailing the service documents to an address at a commercial mailbox service located at 269 S. Beverley Drive along with a notice and acknowledgement of receipt. (Gershman Decl. at ¶¶2-3.)
As set forth above, service by publication is a method of last resort that is only appropriate where the moving party demonstrates service cannot be affected through other means. Code Civ. Proc. § 415.20(c) expressly authorizes service on a “private mailbox obtained through a commercial mail receiving agency” if it is done “in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (C.C.P. § 415.20(c).) Business and Professions Code § 17538.5(d) provides for service at a private mailbox service if that mailbox service places the documents into the customer’s mailbox within 48 hours of their receipt and within five days after receipt mails all documents to the customer at the last known home or personal address:
Upon receipt of any process for any mailbox service customer, the [mailbox service] owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into thecustomer’s mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The [mailbox service] shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing.
(Bus. & Prof. Code § 17538.5(d).) Service under section 17538.5(d) is “deemed perfected 10 days after the date of mailing.”
Cross-Complainant represents that “Leissner continues to own the P.O. box in Beverly Hills, California.” (Motion at 8.) However, Cross-Complainant has made no showing that it has attempted to serve Leissner as permitted under Code Civ. Proc. § 415.20(c) or made any showing that service could not be accomplished through that provision. Cross-Complainant’s motion to serve Leissner by publication is DENIED without prejudice.
2. Doe Cross-Defendants
Cross-Complainant also moves for an order permitting service on Doe cross-defendants who may have an interest in the property. Under Code Civ. Proc. § 763.010, where the moving party “used reasonable diligence to ascertain the identity and residence of and to serve summons on the persons named as unknown defendants and persons joined as testate or intestate successors of a person known or believed to be dead, the court shall order service by publication pursuant to Section 415.50.” Cross-Complaint has shown reasonable diligence in attempting to ascertain the identities and locations of these Doe cross-defendants. (Gershman Decl. at ¶13.) Accordingly, the Court GRANTS Cross-Complainant’s motion to serve the unknown Doe cross-defendants by publication.
Conclusion
Cross-Complainant’s motion to serve by publication is DENIED as to Cross-Defendant Leissner and GRANTED as to the unknown Doe cross-defendants.
