Judge: Lee W. Tsao, Case: 24NWCV00869, Date: 2024-11-14 Tentative Ruling

Case Number: 24NWCV00869    Hearing Date: November 14, 2024    Dept: C

SUBWAY REAL ESTATE, LLC v. BERI

CASE NO.:  24NWCV00869

HEARING:  11/14/24

#11

Plaintiff SUBWAY REAL ESTATE, LLC’s unopposed Motion for Service by Publication is DENIED without prejudice.

Moving Party to give notice.

This breach of lease action was filed by Plaintiff SUBWAY REAL ESTATE, LLC (“Plaintiff”) against Defendants AMAN BERI; and VANDANA BERI (collectively “Defendants”) on March 22, 2024.

Plaintiff moves for an Order permitting Plaintiff to serve each defendant by publication. Defendant’s Counsel’s Declaration states, in pertinent part: “The last known address for Defendants that Subway has on file is 2839 Oak Knoll Drive, Diamond Bar, California 91765 (‘Service Address’). [¶] Between March 30, 2024 to April 10, 2024, Subway’s process server attempted six service attempts on Defendant Aman Beri at the Service Address. There was no activity at the Service Address….[¶] Between March 30, 2024 to April 10, 2024, Subway’s process server attempted six service attempts on Defendant Vandana Beri at the Service Address. There was no activity at the Service Address.” (Chung Decl., ¶¶4-6.)

Here, Plaintiff submits evidence to show that background reports were run through the idiCORE system, which listed only Vandana as residing at the Service Address. (Esters Decl., ¶2.) Plaintiff also submits evidence to show that they searched the White Pages to locate Defendants, and that the White Pages revealed both Defendants to reside at the Service Address. (Id. ¶4.) Based on Plaintiff’s investigations, Plaintiff attempted to serve both defendants at the Service Address six separate times. Plaintiff does not indicate any attempt at service by mail or any other type of service. Plaintiff fails to demonstrate reasonable diligence to locate Defendants. Before allowing a plaintiff to resort to service by publication, the courts necessarily require a plaintiff to show reasonable diligence to locate a defendant. (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.) “Reasonable diligence” requires a number of honest attempts to learn of a defendant’s whereabouts or his or her address by inquiring of friends or relatives and investigating appropriate city and telephone directors and assessor’s office property indices situated near the defendant’s last known address. (Watts v. Crawford (1995) 10 Cal.4th 741, 749, fn. 5.) 

The Proposed Order filed in conjunction with the moving papers fails to track the language required by the CCP. The Order must indicate that the defendants could not with reasonable diligence be served under CCP 415.10 through 105.30. The Order must also specify that publication shall be made once a week for four consecutive weeks. (CCP §415.50(b).) The Order must also provide that if the Defendants’ addresses are ascertained before expiration of time prescribed for publication of summons—copies of the summons, complaint and order for publication will be mailed to the defendant. (Id.)

The Motion is DENIED without prejudice.