Judge Kerry Bensinger, Case Number: 23STCV10575, Date: 2024-02-07 Tentative Ruling

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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On May 10, 2023, Plaintiff, Josue Valdez, initiated this action alleging nine causes of action stemming from alleged misrepresentations made by Defendant, Johnny Hickey, which led to the transfer and theft of $30,000 from Plaintiff. To date, Plaintiff has been unable to serve Defendant.

On January 3, 2024, Plaintiff Josue Valdez filed this Motion for an Order Allowing Service of Summons and Complaint Upon Defendant Johnny Hickey by Publication.

Where a defendant cannot with reasonable diligence be served in any manner specified in Code of Civil Procedure sections 415.10 through 415.40, a plaintiff may seek an order for service by publication. Code of Civil Procedure section 415.50 provides, in pertinent part: “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 …” (Code Civ. Proc., § 415.50, subd. (a).) “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.)

“For the purpose of service by publication, the existence of a cause of action is a jurisdictional fact.” (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726; Code Civ. Proc., § 415.50, subd. (a) [requiring that a “cause of action exists against the party upon whom service is to be made.”])

“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.)

Corporations Code section 1702, subdivision (a) also provides the following: If an agent for the purpose of service of process has resigned and has not been replaced or if the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process, or if no agent has been designated, and it is shown by affidavit to the satisfaction of the court that process against a domestic corporation cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in Section 415.10, subdivision (a) of Section 415.20 or subdivision (a) of Section 415.30 of the Code of Civil Procedure or upon the corporation in the manner provided in subdivision (a), (b) or (c) of Section 416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure, the court may make an order that the service be made upon the corporation by delivering by hand to the Secretary of State, or to any person employed in the Secretary of State’s office in the capacity of assistant or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing such service. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.

Plaintiff seeks an order allowing service of Defendant Johnny Hickey by publication in the Boston Globe and the Los Angeles Times newspapers. He contends that despite diligent efforts, he has been unable to serve Defendant with the summons and complaint. In support, Plaintiff offers the declaration of his counsel, Haley M. Morrison, who details the diligent efforts undertaken to serve Defendant with the summons and complaint. Those efforts included searching or inquiring into Defendant’s IMDB page, LinkedIn profile, and Instagram accounts, running a PeopleMap, and reviewing credit reporting information and vehicle records. Based on that information, Plaintiff determined four possible addresses in the Boston Area. Plaintiff attempted service at all four addresses but was unable to effect service. (Morrison Decl., ¶¶ 3-11.)

Plaintiff further contends that Defendant is a necessary party to this action. The core of Plaintiff’s claims is that Defendant Hickey was responsible for fraudulently inducing Plaintiff to transfer $30,000 to Defendant Hickey and other named defendants. Of the nine causes of action alleged in the operative complaint, eight are asserted against Defendant Hickey. (Morrison Decl., ¶ 12.)

Based on the foregoing, the court finds Plaintiff is entitled to an order allowing service of Defendant Hickey by publication. The Complaint states causes of action against Defendant which meets the requirement of Code of Civil Procedure section 415.50, subdivision (a). (See Code Civ. Proc., § 415.50, subd. (a).) Moreover, service by publication in the Boston Globe and Los Angeles Times newspapers is proper considering Defendant may live and/or frequent Boston, Massachusetts, and the alleged actions took place in the county of Los Angeles. (See Morrison Decl., ¶ 15.)

The motion for service by publication is GRANTED. Service by publication as provided by Government Code section 6064 of Defendant Johnny Hickey in the Boston Globe and Los Angeles Times is ordered. If Defendant Hickey’s address is ascertained before expiration of the time prescribed for publication of the summons, Plaintiff must mail a copy of the summons, the complaint, and the order for publication to Defendant Hickey at that address.

Kerry Bensinger

Judge of the Superior Court