TENTATIVE RULING

Defendant Hans Joerg Dau’s Motion to Quash Service of Summons and Complaint is GRANTED.

Defendant Hans Joerg Dau to give notice. 

REASONING

Code of Civil Procedure section 418.10, subdivision (a)(1), provides that a defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him. Defendant Hans Joerg Dau (“Defendant”) moves to quash service of the summons and complaint upon him on the ground that Plaintiff Javier Napoles (“Plaintiff”) failed to serve Defendant in a code-complaint manner.

On January 16, 2024, Plaintiff filed a proof of service on Defendant purportedly by personal service, but the proof of service shows an attempt of substituted service on December 11, 2023 at an El Segundo, California address. No declaration of diligence was provided, making the proof of service improper. On January 16, 2024, Plaintiff filed a second proof of service on Defendant again purportedly by personal service, but the proof of service shows an attempt of substituted service on December 13, 2023 at a Jackson, Wyoming address. Again, no declaration of diligence was provided, making the proof of service improper. On January 30, 2024, Plaintiff filed a declaration of reasonable diligence, showing nine attempts at personal service by a registered process server, but service was not effectuated. On April 15, 2024, Plaintiff then applied to serve Defendant by publication in the Canyon News, and the application was supported by a letter from an investigator stating that Defendant was in Jackson, Wyoming, not California, but Defendant purportedly returned to California at some point. On April 22, 2024, the Court granted an order for publication, and Plaintiff provided proof of publication on four dates in the Canyon News.

Defendant argues that publication in a Los Angeles newspaper was not sufficient for a knowingly out-of-state Defendant, the application for publication was deficient because Plaintiff did not submit a personal knowledge declaration concerning out-of-state activities, and Plaintiff failed to follow the order for publication because he failed to file a declaration of mailing at the expiration of the time prescribed for publication.

Code of Civil Procedure section 415.50, subdivision (a), 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. [¶] (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 of Civil Procedure section 415.50, subdivision (b), states that “[t]he 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,” and “[i]f 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.” Further, “[t]he 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.” (Ibid.)

First, insofar as Defendant argues that Plaintiff was required to serve Defendant in an out-of-state newspaper in addition to the Canyon News, Defendant provides no legal authority to support this argument, the statute does not so state, and a secondary source is not persuasive authority to this Court.

As to Defendant’s argument that Plaintiff’s application for publication because Plaintiff had no personal knowledge of the investigator’s conduct in attempting to serve, the Court finds that Plaintiff provided a sufficient sworn statement that he had been unable to serve Defendant, and there is no legal requirement that supporting documents constitute admissible evidence. Defendant also argues that the service attempt in Wyoming was insufficient because the investigator tried only one time to serve Defendant in Wyoming on December 15, 2023, but the Court notes that the investigator was told that Defendant was in California, such that further attempts to service in Wyoming would presumably have been futile.

Defendant also argues that Plaintiff failed to follow the Court’s order for publication because Plaintiff did not file a declaration of mailing by the expiration of the time prescribed for the publication. Code of Civil Procedure section 415.50, subdivision (b), states that an order for publication “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,” and indeed the Court’s order so provided, also stating that “[a] declaration of this mailing, or of the fact that the address was not ascertained, must be filed at the expiration of the time prescribed for the publication.” Plaintiff has not filed any such declaration of mailing to date. This was a requirement by statute and by court order for service to be effectuated, and Plaintiff failed to so comply. For that reason, Defendant Hans Joerg Dau’s Motion to Quash Service of Summons and Complaint is GRANTED.