Judge: John J. Kralik, Case: 21BBCV00061, Date: 2023-03-24 Tentative Ruling

Case Number: 21BBCV00061    Hearing Date: March 24, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Michael Pescasio and Adrian Roup (“Plaintiffs”) commenced this lawsuit against Defendants El Liel, LLC, Cranky Pants Productions, LLC, XVIII Entertainment LLC, Elena Bueca, and JJ Rogers for various Labor Code and wage-and-hour violations.  Plaintiffs allege they were employed by Defendants for the purpose of shooting a documentary in Romania and were employed for around 22 workdays by Defendants.  Plaintiffs allege that they were not paid fully for their work and were subject to stressful work hours and dangerous working conditions. 

The complaint, filed January 20, 2021, alleges causes of action for: (1)-(2) failure to provide meal periods and paid rest breaks, counts one and two; (3)-(4) failure to pay all overtime hours worked, counts one and two; (5)-(6) failure to provide accurate itemized statements, counts one and two; (7) failure to pay wages when due; (8) failure to pay minimum wage; (9)-(10) failure to reimburse all expenses, counts one and two; (11)-(12) breach of oral contract, counts one and two; (13)-(14) intentional misrepresentation, counts one and two; (15) fraud: negligent misrepresentation; (16) NIED; (17) unlawful and unfair business practices; and (18) waiting-time penalties for nonpayment of wages.

B.     Relevant Background

On March 26, 2021, the default of Defendant Cranky Pants Productions, LLC was entered.  On March 30, 2021, the default of Defendant El Liel, LLC was entered.

On April 1, 2021, Plaintiff filed an Amendment to the Complaint naming Defendant David Rogers (Doe 1).

On April 23, 2021, the Court granted Defendant Elena Bueca’s motion to quash service of the summons.  The Court noted that while substituted service was purportedly effectuated at 4329 Colfax Ave., Apt. 200, Studio City, CA 91604, it appeared that Ms. Bueca had moved to Romania.  Thus, the Court stated in its written order: “[T]he parties are urged to meet and confer in good faith to determine whether Defendant will accept service and, if not, Defendant should disclose her current address in Romania so that Plaintiffs may determine the proper means to serve her.”

On October 20, 2021, Plaintiffs filed a motion for an order allowing service by publication on Defendants Elena Bueca and David Rogers pursuant to CCP § 415.50 and Government Code, § 6064.   Defendants John Rogers and XVIII Entertainment, LLC opposed the motion.  On December 1, 2021, the Court denied Plaintiff’s motion for an order allowing service by publication on Defendants Elena Bueca and David Rogers.

C.     Motion on Calendar

On November 23, 2022, Plaintiffs filed a motion for an order allowing service by publication on Defendants Elena Bueca and David Rogers pursuant to CCP § 415.50 and Government Code, § 6064.  On November 28, 2022, Plaintiffs filed the memorandum of points and authorities in support of the motion. 

On March 15, 2023, Plaintiffs filed a notice of non-opposition, stating that they were not in receipt of an opposition brief from Defendants by the opposition due date of March 13, 2023. 

LEGAL STANDARD

            CCP § 415.50 states:

(a) 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.

(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.

(b) 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. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. 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. 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.

(c) Service of a summons in this manner is deemed complete as provided in Section 6064 of the Government Code.

(d) Notwithstanding an order for publication of the summons, a summons may be served in another manner authorized by this chapter, in which event the service shall supersede any published summons.

(e) As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require that a search be conducted of public databases where access by a registered process server to residential addresses is prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles.

(CCP § 415.50.) 

Government Code, § 6064 states:

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. 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.

(Gov. Code, § 6064.)

DISCUSSION

            Plaintiffs move for an order allowing service by publication of Defendants Elena Bueca and David Rogers.  They seek to publish notice of service in: (A) the LA Daily Journal, a newspaper of general circulation in the State of California that they claim is likely to give Defendants actual notice of the pendency of this action because their last known zip code was in this county; (B) a publication in Romania through a newspaper of general circulation; and (C) online via Global Legal Notices at www.globallegalnotices.com, arguing that Defendants are already on notice of the pendency of this action. 

            In support of the motion, Plaintiffs provide the declaration of their counsel, Christian B. Clark.  Mr. Clark states that originally, El Liel, LLC filed two separates actions against Pescasio and Roup on October 28, 2019, which were eventually dismissed on December 2 and 7, 2020 respectively.  (Clark Decl., ¶¶4-12.)  Shortly thereafter, Elena Bueca canceled her business entities El Liel, LLC and Cranky Pants, LLC.  (Id., ¶13.)  On January 20, 2021, Mr. Clark filed the complaint in this action on behalf of Plaintiffs Pescasio and Roup.  (Id., ¶15, Ex. 5.)  He states the following efforts of service were made:

·         On January 29, 2021, a process server performed substituted service on Elena Bueca after 4 prior attempts on a “John Doe” and co-occupant at 4329 Colfax Ave., Apt. 200, Studio City, CA 91604.  (Id., ¶16, Ex. 6.) 

o   On February 16, 2021, Plaintiffs served a skip trace letter to the Colfax address to locate Elena Bueca but received no return mail. (Id., ¶16, Ex. 7.)

o   Several attempts were made to serve David Rogers at the Colfax address, but were unsuccessful.  (Id., ¶17.)  

o   The Colfax address was obtained after conducting a comprehensive background report which listed it as Elena Bueca’s most recent residence and her business address.  (Id., ¶18.)

o   Mr. Clark states that this method of service was reasonably calculated to provide Bueca with actual notice of the action because she lived in or operated her business out of this address until December 2020.  (Id., ¶19.) Plaintiffs exercised reasonable diligence by attempting 4 means of service on 4 different dates.  (Id.)

·         Plaintiffs conducted a property report on 2129 Echo Park Avenue, Los Angeles, CA 90026, which listed the Rogers Family Trust as the legal owner with Elena Rogers (aka Elena Bueca) and David Rogers listed as trustees.  On February 16, 2021, Plaintiffs served a skip trace letter on this address to locate Elena Bueca but received no return mail.  (Id., ¶20, Exs. 8-9.) 

·         Based on her March 26, 2021 declaration in support of her motion to quash service, Elena Bueca stated that she moved to Romania in the summer of 2020 and has no intention of returning to the United States.  (Id., ¶21, Ex. 10.)

o   The Court issued its tentative ruling in April 2021, which both parties submitted to online.  (Id., ¶23, Ex. 12.)  The Court urged the parties to meet and confer in good faith to determine whether Elena Bueca would accept service and, if not, stating that she should disclose her current address in Romania so that Plaintiffs may determine the proper means to serve her.

·         On April 22, 2021, Mr. Clark sent an email to defense counsel, Scott Meehan, requesting Elena Bueca’s address, but he received no response from Mr. Meehan.  (Id., ¶24, Ex. 13.)

·         Although he propounded written discovery on John Rogers and XVIII Entertainment, LLC for Elena Bueca and David Rogers’ current addresses, Rogers and XVIII Entertainment, LLC responded “unknown.”  (Id., ¶25, Ex. 13.) 

·         On October 20, 2021, Mr. Clark’s office filed a motion for order allowing service via publication.  On October 29, 2021, Mr. Meehan responded by providing Bueca’s Romanian address, though Mr. Clark had requested this information nearly 6 months prior.  (Id., ¶26, Ex. 14.)

o   Mr. Clark states that based on her social media accounts, it appears that Bueca has returned to the United States several times, as recently as February 2022, and also has the intention to purchase property in Atlanta, GA.  (Id., ¶27, Ex. 15.)

Mr. Clark states that Defendants have demonstrated bad faith intentions by failing to provide their current and true Romanian address and denying their whereabouts when traveling to the United States.  (Clark Decl., ¶28.)  He states that his office has made every reasonable and diligent attempt to effectuate personal service on Elena Bueca and David Rogers on U.S. soil.  (Id., ¶30.)  He states that based on Elena Bueca’s social media postings, she has not been in Romania, but has been traveling between Ukraine and the United States and is residing somewhere in Europe, such that he cannot ascertain her current address.  (Id.)  Mr. Clark also states that Elena Bueca has actual notice of this action as she filed a motion to quash service of summons and Mr. Meehan had discussed settlement negotiations on her behalf.  (Id., ¶¶33-34, Ex. 10.) 

By the date of this hearing, Plaintiffs will have attempted service for over 2 years.  At the last hearing on Plaintiffs’ motion to serve by publication, the Court noted that Plaintiffs were finally in receipt of Defendants’ Romania address.  Since then, based on Mr. Clark’s declaration, it appears that he and his office made efforts to serve Elena Bueca and David Rogers when they were on U.S. soil, but it is unclear what efforts they have made to serve them at their Romania address—whether by mail or otherwise.  The Court will make inquiries at the hearing whether any efforts were made to serve Defendants at their disclosed Romania address. 

            Upon making such inquiries, the Court would be inclined to grant this motion to allow service by publication at the three newspapers/online outlets suggested by Plaintiffs. 

CONCLUSION AND ORDER

The Court is inclined to grant Plaintiffs’ motion for an order allowing service by publication on Defendants Elena Bueca and David Rogers.  However, the Court orders Plaintiffs’ counsel to attend the hearing so that the Court may make inquiries regarding what efforts, if any, Plaintiffs’ counsel’s office has made to serve Defendants at their disclosed Romania address. 

Plaintiffs shall provide notice of this order.