Judge: Mark C. Kim, Case: 21STCV02627, Date: 2023-01-26 Tentative Ruling



Case Number: 21STCV02627    Hearing Date: January 26, 2023    Dept: S27

1.     Background Facts

Plaintiff, Sharron Willis filed this action against Defendants, Anaheim Gardens Housing, LLC, et al. for damages arising out of the shooting death of Decedent, K’Len Grandberry.  Plaintiff alleges the death occurred on Defendants’ property due to Defendants’ insufficient security measures at the property.  Plaintiff’s First Amended Complaint include causes of action for negligence, premises liability, negligent hiring, supervision, training, and/or retention, and survival.  The FAC includes a prayer for punitive damages.

 

2.     Motion to Serve Secretary of State and by Publication

  1. Relief Sought

Plaintiff seeks an order permitting her to serve Defendants Marc Menowitz and Gennady Prilutsky by publication and Defendants ARA II, Inc. and Anaheim Gardens Housing, LLC by service on the Secretary of State. 

 

b.         Publication

i.          Law Governing Publication

            Publication of summons in a newspaper of general circulation is an accepted method for serving a summons and complaint.  A plaintiff seeking to serve a defendant by publication must obtain a court order before attempting service by this method. [CCP § 415.50].  CCP § 415.50 is strictly construed: “If there is any situation in which strict compliance can reasonably be required, it is that of service by publication.”  Katz v. Campbell Union High School Dist. (2006) 144 CalApp.4th 1024, 1034. 

 

Service by publication is not adequate notice for due process purposes for defendants whose whereabouts are known, and who therefore could be notified by means such as personal service or mail. Tulsa Professional Collection Services, Inc. v. Pope (1988) 485 US 478, 491.  “[C]onstitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort.” Thus, if defendant's address is ascertainable, some other method of service must be employed.   Watts v. Crawford (1995) 10 Cal.4th 743, 749.

 

In order to obtain a court order for publication, a plaintiff's attorney must prepare a declaration containing certain essential facts, and must submit it to the court at an ex parte hearing (defendant not present).  Rios v. Singh (2021) 65 Cal.App.5th 871, 883.  If satisfied with the contents of the declaration, the judge will order defendant served by publication and mailing. [CCP § 415.50].

 

The declaration for publication of summons must be executed by a person who is a competent witness to the proof of facts required by CCP § 415.50(a), which include:

1)    Reasonable diligence to serve by other methods: The first requirement is a showing that reasonable attempts have been made to serve the defendant in some other authorized manner. [CCP § 415.50(a)]

If defendant's address is ascertainable, some other method of service must be employed. Service by mail under CCP § 415.30 is “another manner of service” within the meaning of § 415.50. Therefore, if the defendant's mailing address in California is known—even if it is only a post office box—reasonable attempts must be made to serve the defendant by mail pursuant to § 415.30 before seeking an order for publication of summons.  Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 745. 

2)    The declaration must establish reasonable diligence by “probative facts based on personal knowledge.”  Rios v. Singh (2021) 65 Cal.App.5th 871, 882.

3)    “Reasonable diligence”: The term “reasonable diligence” denotes “a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.”  Watts v. Crawford (1995) 10 Cal.4th 743, 749.

 

The basic test is whether the declaration shows plaintiff took “those steps which a reasonable person who truly desired to give notice would have taken under the circumstances.”  Rios, supra at 880. 

 

If the Court is satisfied with the showing, the Court will order the summons published in a designated newspaper that is “most likely to give actual notice” to the defendant. [CCP § 415.50(b)].  The requirement of publication in a newspaper “most likely to give actual notice” (CCP § 415.50(b)) is not met if the plaintiff knows the defendant is not in the locale where the newspaper is published.   Olvera, supra at 43. 

 

ii.          Evidence

Plaintiff seeks an order permitting her to serve Defendants Marc Menowitz and Gennady Prilutsky by publication in the Long Beach Times.  Plaintiff’s attorney declares that he previously had Menowitz and the entity defendants served at 737 S. Genesee Avenue in connection with the related case.  He declares his process server attempted to serve Defendants at the same address on 12 occasions, but service was not successful.  Defense Counsel, who is also Defendants’ attorney in the related case, advised Plaintiff’s attorney that he would be representing all of the defendants in this action.  He stated, however, that he was not authorized to accept service on behalf of his clients.  Plaintiff’s attorney declares four additional attempts at service were made at the Genesee address, but none were successful as to the subject defendants.  Counsel declares he mailed each defendant a copy of the summons, complaint, and related documents with a notice and acknowledgement of receipt, and Defense Counsel acknowledged receipt of the documents, but indicated service by mail would not be accepted. 

 

iii.         Analysis

The Court finds Plaintiff’s attorney’s declaration is sufficient to permit service of the summons and complaint by publication.  The Court notes that Defendants appear to be avoiding service, that attempts to serve by mail and acknowledgement of receipt were made, and that Defense Counsel has been retained.  The motion is therefore granted.

 

The Court’s only concern is with permitting publication in the Long Beach Times.  Plaintiff’s evidence is that Defendants reside at 737 S. Genesee Avenue, which is located Mid-Wilshire in the City of Los Angeles.  The Court will require publication in the Daily Journal, which is the publication most used in the City of Los Angeles for publication of summons and complaints. 

 

  1. Secretary of State

i.              Law Governing Service of Entity by Service on Secretary of State

If, despite reasonable diligence, the summons cannot be served on an entity via any of the typical methods for service of process, service may be made on the Secretary of State as provided below. CCP § 416.10(d).  If the corporation at issue is a California corporation, the plaintiff's attorney must first obtain a court order authorizing hand delivery to the Secretary of State or the Secretary's assistant or deputy. Corps.C. § 1702(a), (d).

 

The court order must be based upon a factual showing (by declaration) that process cannot be served with reasonable diligence upon (i) the corporation's designated agent (i.e., because the agent resigned and was not replaced or cannot be found at the designated address or if no agent was appointed); and (ii) the corporation by any other authorized method. Corps.C. § 1702(a).

 

ii.             Evidence

Plaintiff provides evidence that Mark Menowitz is listed as the entity defendants’ agent for service of process, and that the registered address for service of process is 737 S. Genesee Avenue.  The remainder of Plaintiff’s evidence is the evidence detailed above in connection with the request to publish the summons as to the individual defendants. 

 

iii.            Analysis

The motion is granted for the same reasons discussed above in connection with the request to publish the summons as to the individual defendants. 

 

3.     OSC re: Proof of Service

There is an OSC re: proof of service on calendar today concurrently with the hearing on the above motion.  The Court will continue the OSC re: proof of service for sixty days, to March 27, 2023 at 8:30 a.m. in Department S27.  The Court asks Plaintiff to act diligently to complete service prior to 3/27/23 if at all possible. 

 

Plaintiff is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.