Judge: Michael E. Whitaker, Case: 24SMCV04198, Date: 2025-01-08 Tentative Ruling

Case Number: 24SMCV04198    Hearing Date: January 8, 2025    Dept: 207

TENTATIVE RULING

MOTION

            This case arises from a dispute between co-founders of a company.  On August 29, 2024, Plaintiff Isaac Zakon (“Plaintiff”) filed a complaint against Defendant Nicholi Nejat Sabeti (“Defendant”) alleging six causes of action for (1) breach of contract; (2) breach of fiduciary duty; (3) violation of Penal Code section 496; (4) conversion; (5) unjust enrichment; and (6) accounting.

            Plaintiff now moves for leave to serve Defendant by publication and to extend the time for Plaintiff to serve Defendant.  The motion is unopposed.

ANALYSIS

Unlike other service methods, a plaintiff must obtain a court order prior to serving a defendant via publication.  Strict compliance with the statutory requirements is required.  (County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450.) 

“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 Civ. Proc., § 415.50, subd. (a).) 

The plaintiff must establish reasonable diligence via the testimony of an individual with personal knowledge of the efforts to serve the defendant.  (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42; Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333 [“the question is simply whether [plaintiff] took those steps which a reasonable person who truly desired to give notice would have taken under the circumstances”].)  Likewise, a plaintiff must establish that a cause of action exists against the defendant via the testimony of an individual with personal knowledge of the underlying facts.  (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726.)

“The term ‘reasonable diligence’ denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.  A number of honest attempts to learn defendant's whereabouts or his address by inquiry of relatives, and by investigation of appropriate city and telephone directories, [voter registries, and assessor's office property indices situated near the defendant's last known location], generally are sufficient. These are the likely sources of information, and consequently must be searched before resorting to service by publication.  Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice.”  (Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.)

Here, Plaintiff relies on the declaration of Aryeh Kaufman, which indicates registered process server William May attempted to personally serve Defendant at his residence four times from September 5-7, and process server Esmerelda Pech attempted to personally serve Defendant at his residence four times from September 29 through October 16.  (Kaufman Decl. ¶¶ 4-6 and Exs. A-B.)  Each process server received conflicting information about whether Defendant still resides at the address where service was attempted.  The manager purportedly confirmed to Mr. May that Defendant resides there, but a fellow tenant purportedly informed Ms. Pech that Defendant no longer resides there.  (Kaufman Decl. ¶¶ 5, 7.)  Counsel ran a skip trace but did not discover any additional locations for Defendant.  (Kaufman Decl. ¶ 8.)

Notwithstanding, the Court finds Plaintiff has not yet demonstrated the requisite diligence to justify service by publication because Plaintiff has not attempted to serve Defendant by mail.  (See Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746 [“based on respondent's failure to attempt service by mail pursuant to Code of Civil Procedure section 415.30 prior to filing its application for order for publication of summons, we find the 415.50 motion was defective as a matter of law”].)  “A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.”  (Code Civ. Proc., § 415.30, subd. (a).)   In particular, the Court finds that Plaintiff has not attempted to serve Defendant at Defendant’s last known mailing address and Plaintiff has not provided any information to the Court that Defendant has not requested that the United States Postal Service forward mail from Defendant’s last known mailing address.  

CONCLUSION AND ORDER

In short, Plaintiff has not established that he has exhausted all other means to locate Defendant and serve the summons and complaint on Defendant before resorting to service by publication.  The Court therefore denies the motion without prejudice.

            Further, on the Court’s own motion, the Court continues the Case Management Conference from February 25, 2025 to April 29, 2025 at 8:30 A.M. in Department 207 to permit Plaintiff with additional time to perfect service of the summons and complaint.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

            Further, Plaintiff shall provide notice of the Court’s orders and file the notice with a proof of service. 

DATED:  January 8, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court