Judge: Gary I. Micon, Case: 22CHCV00251, Date: 2024-06-05 Tentative Ruling

Case Number: 22CHCV00251    Hearing Date: June 5, 2024    Dept: F43

Dept. F43

Date: 6-5-24

Case #22CHCV00251 , Superior Construction Group, Inc. vs. Charles Naaman., et al.

Trial Date: N/A

MOTION TO SERVE BY PUBLICATION

MOVING PARTY: Cross-Defendant/Cross-Complainant Maroun Sadaka dba Superior Construction

RESPONDING PARTY: None

RELIEF REQUESTED

Moving party requests an order allowing it to serve Cross-Defendant Sal’s Roofing through publication

RULING: The motion is denied.

SUMMARY OF ACTION

This is a breach of contract, fraud action brought by Plaintiff Superior Construction Group, Inc. dba Superior Construction (“Plaintiff”) against several defendants. The operative First Amended Complaint filed on December 8, 2023, alleges that Plaintiff entered into an agreement with some defendants to provide construction services, material, and equipment, but the defendants refused to pay Plaintiff after Plaintiff provided those services.

On January 13, 2023, Maroun Khalil Sadaka dba Superior Construction (“Cross-Complainant”) filed his Cross-Complaint.

On November 28, 2023, Cross-Complainant amended his Cross-Complaint to substitute Sal’s Roofing, an entity of unknown form, for the cross-defendant sued fictitiously as Zoe 1.

On March 29, 2024, Cross-Complainant filed his operative Amended Cross-Complaint (“AXC”) against Super Air, Inc., Diamond West Builders, Inc., JK Glass, Extreme Plastering Inc., TS Construction, West Coast Construction, GM Parking Lot Restoration Corp., and Zoes 1 through 50, inclusive, asserting causes of action for (1) implied equitable indemnity, (2) comparative contribution, (3) declaratory relief, (4) breach of written contract, (5) negligence, (6) breach of oral contract, and (7) implied contractual indemnity.

On January 31, 2024, Cross-Complainant filed the instant motion for an order to serve Sal’s Roofing through publication. No opposition or reply

ANALYSIS

Requests for Judicial Notice: No requests for judicial notice have been filed.

Evidentiary Objections: No evidentiary objections have been filed.

Summary of Arguments

In its moving papers, Cross-Complainant argues that as of the filing of the motion on January 31, 2024, it has been unable to serve Sal’s Roofing despite reasonable diligence. Therefore, Cross-Complainant seeks an order permitting service of the Summons and Cross-Complaint by publication on Sal’s Roofing in accordance with Code of Civil Procedure § 415.50.

Case Law

“[T]he governing statutes afford the plaintiff a variety of means by which to effect service upon the defendant.” (Watts v. Crawford (1995) 10 Cal.4th 743, 748 (“Watts”).)

“Service may be accomplished by means of personal delivery of the summons and complaint to a party ([Code Civ. Proc.] § 415.10), by delivery to the business office or dwelling of certain classes of parties (§§ 415.20; 416.10–416.90), by mailing (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40).” (Watts, supra, 10 Cal.4th at p. 748.)

“Finally, if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order. ([Code Civ. Proc.] § 415.50.)” (Watts, supra, 10 Cal.4th at p. 748.)

 “To obtain an order directing service by publication, section 415.50, subdivision (a) [“Section 415.50(a)”], requires a party to establish to the satisfaction of the court in which the action is pending ‘that the party to be served cannot with reasonable diligence be served in another manner specified in this article....’ [Citation.]” (Watts, supra, 10 Cal.4th at p. 748 [italics and footnote removed].)

In addition to showing that the party to be served cannot, with reasonable diligence, be served in another manner specified in the relevant Code of Civil Procedure article, the moving party must also show “either:

(1)   A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.

(2)   The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.”

(Code Civ. Proc., § 415.50, subd. (a).)

“The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. …. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons.” (Code Civ. Proc., § 415.50, subd. (b).)

“Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.” (Code Civ. Proc., § 415.50, subd. (b); Gov. Code, § 6064 [“Publication of notice pursuant to this section shall be once a week for four successive weeks. Four publications in a newspaper regularly published once a week or oftener, with at least five days intervening between the respective publication dates not counting such publication dates, are sufficient”].)

“Service of a summons [by publication] is deemed complete as provided in Section 6064 of the Government Code.” (Code Civ. Proc., § 415.50, subd. (c); Gov. Code, § 6064 [“The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day”].

“When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.)

Application to Case

As stated above, Section 415.50(a) requires Cross-Complainant to show that Sal’s Roofing could not, with reasonable diligence, be served through any other manner like personal service, substituted service, or mail. (See Watts, supra, 10 Cal.4th at p. 749, fn. 5 [“If a defendant’s address is ascertainable, a method of service superior to publication must be employed, because constitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort. [Citations.] The means of service described in sections 415.10 through 415.40 ‘make service by publication unnecessary except where a defendant’s whereabouts and his dwelling house or usual place of abode, etc. cannot be ascertained with reasonable diligence.... [¶] The term “reasonable diligence”... denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. [Citations.] A number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, ... and 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. These are the likely sources of information, and consequently must be searched before resorting to service by publication.’ [Citations.] ‘Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice. [Citations.]’ [Citation]”].)

Here, to show reasonable diligence, Cross-Complainant submits its counsel’s declaration, which attests to the following facts: “[Cross-Complainant] attempted to serve Sal’s Roofing via personal service at its last known address, at 305 South Pacific Avenue, Santa Ana, CA 92703. [Cross-Complainant] made four (4) attempts to serve Sal’s Roofing at this location via personal service on December 9, 2023, December 12, 2023, December 15, 2023, and December 17, 2023. However, each attempt was unsuccessful because there was no activity seen at the home and no answer to repeated knocking on the door.” (Motion, Declaration of Shirel Cohen (“Cohen Decl.”), ¶ 6.) “As of the date of this motion, [Cross-Complainant] has been unable to serve Sal’s Roofing with the Summons and Cross-Complaint, despite reasonable diligence.” (Cohen Decl., ¶ 7.) “Given that there have been four unsuccessful attempts of serving Sal’s Roofing, this

motion is necessary to serve Sal’s Roofing.” (Cohen Decl., ¶ 8.)

The Court finds that defense counsel’s declaration fails to show that Cross-Complainant exhausted all service methods other than publication (e.g., mail). In its motion, Cross-Complainant states that he “exhausted all reasonable means to mail serve Sal’s Roofing pursuant to Code of Civil Procedure § 415.10.” (Motion, p. 6:27-28.) However, that fact is not included in his counsel’s declaration or supported by any affidavit. In addition, even though the server noted in the Affidavit of Due Diligence that there was “[n]o visible mail,” it is unclear whether the server meant that there was no “mailbox” on the property. (Motion, Exhibit C – a copy of the Affidavit of Due Diligence, Attempt Detail No. 1.)  In any event, Cross-Complainant has not stated that he at least attempted to mail the papers to that last known address, and the mail was returned undeliverable. Indeed, “[a] summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left.” (Code Civ. Proc., § 415.95, subd. (a).) Here, Cross-Complainant alleges that Sal’s Roofing is an entity of unknown form but has not shown that he attempted service through that method. Accordingly, Cross-Complainant has failed to show reasonable diligence in attempting service within the meaning of Section 415.50(a).

Most importantly, “‘[i]t is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]’ [Citation.] ‘Such amended pleading supplants all prior complaints.’” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.)

Here, Cross-Complainant filed the instant motion on January 31, 2024, but then filed an Amended Cross-Complaint on March 29, 2024. Therefore, the Amended Cross-Complaint superseded the original Cross-Complaint with which the Cross-Complainant attempted to serve Sal’s Roofing.

Despite the Amended Cross-Complaint becoming the operative pleading, Cross-Complainant has not filed any papers showing that he attempted to serve his amended pleading on Sal’s Roofing through any method of service (personal or otherwise).

For those reasons, the Court finds that Cross-Complainant has failed to satisfy Section 415.50(a)’s requirements for obtaining an order directing service by publication on Sal’s Roofing.

Therefore, the motion is denied.

Conclusion

The motion is denied without prejudice.

Moving party to give notice.