Judge Helen Zukin, Case 22SMCV00649 2022-10-13 Tentative Ruling

Judge: Helen Zukin, Case: 22SMCV00649, Date: 2022-10-13 Tentative Ruling

Case Number: 22SMCV00649 Hearing Date: October 13, 2022 Dept: 207

Background

This is an action for the partition of real estate located at 10337 Wilshire Boulevard, Los Angeles, California 90024. Plaintiff Chateau de Monte Cristo, LLC, (“Plaintiff”) purports to own a 99.98% interest in the subject property, with the remaining .02% interest held by Defendant Justus Senftner (“Defendant”). On July 25, 2022, Plaintiff moved for an application for leave to serve Defendant by publication. The Court granted Plaintiff’s motion on August 5, 2022. Defendant now moves to quash Plaintiff’s service by publication. Plaintiff opposes the motion.

Objections to Evidence

The Court OVERRULES Plaintiff’s objection #3 to the declaration of G. Scott Sobel. The Court does not rule on Plaintiff’s remaining objections as it did not rely on the evidence challenged by those objections.

Legal Standard

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (C.C.P. § 418.10(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Code Civ. Proc. § 415.50 provides that “[a] summons may be served by publication if upon affidavit it appears 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 and that 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[; or] [¶] (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.” (C.C.P. § 415.50(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.” (C.C.P. § 415.50(b).) “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.” (Id.) “[T]he requirements for service of summons by publication must be strictly complied with.” (County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450 (emphasis in original).)

Analysis

Defendant argues Plaintiff’s service by publication was deficient and Defendant can only be served in Germany pursuant to the Hague Service Convention.

Code Civ. Proc. § 413.10(c) states “[e]xcept as otherwise provided by statute, a summons shall be served on a person: . . . Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the “Service Abroad of Judicial and Extrajudicial Documents” in Civil or Commercial Matters (Hague Service Convention).” Israel is a signatory to the Hague Service Convention. (Convention Done at the Hague November 15, 1965; (Feb. 10, 1969) 20 U.S.T. 361, T.I.A.S. No. 6638.)

“Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person. [Citation] This is true even when the party indisputably had notice of the action.” (In re Alyssa F. (2003) 112 Cal.App.4th 846, 852.) “Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law. . . . The only method of service under California law which does not require the transmission of documents abroad, and consequently does not implicate the Hague Service Convention, is service of summons by publication where the party's address remains unknown during the publication period despite the exercise of reasonable diligence.” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

Kott is squarely on point. In Kott the plaintiff obtained an order permitting service by publication on the defendant Canadian citizen residing in Canada who moved to quash service. The Court of Appeal rejected defendant’s argument that a Canadian citizen residing in Canada could not be served by publication, stating “The only method of service under California law which does not require the transmission of documents abroad, and consequently does not implicate the Hague Service Convention, is service of summons by publication where the party's address remains unknown during the publication period despite the exercise of reasonable diligence.” (Kott, 45 Cal.App.4th at 1136.) The Court then turned to the question of whether the plaintiff had sufficiently demonstrated its “reasonable diligence” in locating the defendant’s address so as to defeat the defendant’s motion to quash. The Court found plaintiff had not shown reasonable diligence as plaintiff had not shown an effort to locate the defendant’s address in Canada:

Two weeks later on September 14, 1995, Beachport filed an application for publication of summons claiming Kott's address was unknown. In support of this assertion Beachport relied on their investigator's efforts in June to locate Kott in California. However, this investigation occurred prior to Beachport learning Kott was a resident and citizen of Canada. This new knowledge should have provided an explanation for its investigator's singular lack of success in finding any trace of Kott in Los Angeles County. In addition, after Beachport knew Kott was a citizen of Canada, reliance on its investigator's earlier efforts made irrelevant by the new information was patently deficient to demonstrate reasonable diligence.

Beachport made no effort whatsoever to locate an address for Kott in Canada, despite its knowledge Kott was a Canadian national. (Cf. Quaranta v. Merlini, supra, 192 Cal. App. 3d 22, 30 [when plaintiffs heard on the street defendant was a seaman residing in Italy plaintiffs located his address through the Registry of Vital Statistics of the City of Florence, Italy].) Moreover, Beachport failed to consult obvious sources to request information on Kott's current business or residence address. It never asked Kott's counsel for Kott's address, despite an exchange of correspondence, numerous telephone conversations between counsel and the fact counsel had office space in the same building. (See, e.g., Donel, Inc. v. Badalian, supra, 87 Cal. App. 3d 327, 333 [“More significant and controlling in this case is the fact that Donel failed to take the one step which patently appeared to hold the most promise for locating Badalian--an inquiry addressed to Attorney Caplow.”].)

(Id. at 1139.) The Court found plaintiff had “chose[n] to ignore obvious avenues” for finding an address for defendant in Canada, and thus could not rely on service by publication to establish jurisdiction over the defendant. The Court reversed and ordered the trial court to enter an order granting defendant’s motion to quash.

Similar facts are presented here. Defendant has put forth evidence in the form of correspondence dated May 21, 2022, in which Plaintiff’s counsel was informed Defendant should be served in Germany. (Ex. A to Sobel Decl.) As in Kott, Plaintiff thus had an obligation to attempt to locate an address for Defendant in Germany. It appears no such effort was made here. The only attempt to locate an address for Defendant in Germany are detailed in the declaration of Plaintiff’s private investigator, Edward Beyer, who states:

Also in May 2022, Eric Kennedy, counsel for Plaintiff, requested that Transwest perform a further investigation concerning the possible whereabouts of Senftner in Germany. However, without being provided with a last known address in Germany, the likelihood of Senftner being located in such foreign country was not feasible.. . .

(Beyer Decl. at ¶ 4.) Plaintiff’s opposition sets forth no other efforts made to locate an address for Plaintiff in Germany. It appears from Mr. Beyer’s declaration that Plaintiff knew in May 2022 that Defendant may be residing in Germany but determined it was not worth making any attempt to locate an address for him there. Defendant also point out “At no time did Plaintiff ever request Defendant’s relatives, Jane Doe, his grandmother nor his attorney give him Defendant’s address in Germany.” (Motion at 9.) Plaintiff does not dispute this fact. Such facts bring this motion squarely within the Court’s holding in Kott.

In opposing Defendant’s motion to quash, it is Plaintiff’s initial burden to demonstrate service was properly effectuated on Defendant. The Court finds Plaintiff has failed to demonstrate it exercised reasonable diligence in locating an address for Defendant in Germany prior to resorting to service by publication. Accordingly, the Court finds Plaintiff’s service by publication pursuant to Code Civ. Proc. § 415.50 was deficient and GRANTS Defendant’s motion to quash.

Conclusion

Defendant’s motion to quash is GRANTED.