Judge: Robert S. Draper, Case: 19STCV32597, Date: 2022-10-13 Tentative Ruling

Case Number: 19STCV32597    Hearing Date: October 13, 2022    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant James Harden’s Motion to Quash Service of Summons and to Set Aside and Recall Order for Publication is GRANTED.

FACTUAL BACKGROUND

This is a real estate contract dispute. The Complaint alleges as follows. Plaintiff George Santopietro (“Santopietro”) entered into a contract with Defendant James Harden (“Harden”) and his agents, Defendants Jeff Wiseman (“Wiseman”), Patrick Michael (“Michael”), Lia Vasdekis (“Vasdekis”), LA Real Estate Rentals, LLC (“LA Real Estate”), and Solimar Management, LLC (“Solimar”), for Harden to rent Santopietro’s home (“the Property”) for one week. (Compl. ¶ 5.) Included in the rental contract was a provision forbidding Harden from having more than seven adults in the Property at any time. (Compl. ¶ 6.) The contract required a $150,000 payment to Santopietro for every party exceeding seven people. (Id.) Despite this, Harden threw at least two parties exceeding seven people without Santopietro’s permission and without paying him the required fee. (Id.) Santopietro claims that Harden caused damage to the Property and harmed his relationship with his neighbors and Homeowners Association. (Compl. ¶ 14.)

PROCEDURAL HISTORY

On September 12, 2019, Santopietro filed the Complaint alleging five causes of action:

1.    Breach of contract;

2.    Breach of the covenant of good faith and fair dealing;

3.    Fraud;

4.    Fraud in the inducement;

5.    Unfair business practices.

On February 20, 2020, Harden filed the Answer and a Cross Complaint alleging two causes of action:

1.    Abuse of process;

2.    Return of deposit with statutory damages.

On May 15, 2020, Santopietro filed a Proof of Service by Substituted Service for Harden and Vasdekis.

On June 05, 2020, Harden and Vasdekis filed a Motion to Quash Service of Summons.

On August 27, 2020, the Court denied Harden and Vasdekis’s Motion to Quash Service of Summons.

On September 15, 2020, Harden and Vasdekis filed a Notice of Filing of Petition for Writ of Mandate regarding the denial of the Motion to Quash Service of Summons.

On October 22, 2020, the Court of Appeals filed an Alternative Writ of Mandate directing this Court to vacate its order and enter a new order granting the Motion to Quash Service of Summons.

On January 12, 2021, Santopietro applied to publish Harden’s summons.

On January 13, 2021, the Court granted Santopietro’s application to publish Harden’s summons.

On March 10, 2021, Harden filed a Motion to Quash Harden’s summons and to set aside and recall the orders for publication.

On April 6, 2021, the Court denied Harden’s Motion to Quash Harden’s summons and to set aside and recall the orders for publication.

On April 20, 2021, Harden filed a Notice of Filing of Petition for Writ of Mandate for the Court’s denial of his Motion to Quash the summons.

On August 19, 2021, the Court of Appeal granted Harden’s Writ of Mandate and ordered the Court to vacate its April 6 order denying Harden’s Motion to Quash service.

On October 21, 2021, the Court of Appeal’s remittur was filed.

On January 11, 2022, Santopietro filed an Order for Publication for Harden. That Order was granted.

On February 14, 2022, Santopietro filed a Proof of Publication.

On March 3, 2022, Santopietro filed a second Proof of Publication.

On March 22, 2022, Harden filed the instant Motion to Quash Service of Summons.  

On July 5, 2022, Santopietro filed an Opposition.

On July 11, 2022, Harden filed a Reply.

DISCUSSION

     I.         Request for Judicial Notice

Harden requests Judicial Notice of the following:

1.    Application for Publication filed January 10, 2022 in the instant case.

2.    Declaration of Due Diligence by Laurence Michelson filed January 10, 2022, in the instant case.

3.    Declaration of Non-Service by Andrew Garza filed January 10, 2022 in the instant case.

4.    Declaration of Robert H. Bisno in Support of Plaintiff’s Application for Publication filed January 10, 2022, in the instant case.

5.    Order for Publication filed January 11, 2022, in the instant case.

6.    Proof of Publication filed February 14, 2022, in the instant case.

7.    Proof of Service by Publication on James Harden filed March 3, 2022, in the instant case.

8.    Remittitur filed October 21, 2021.

9.    Mandatory Use Judicial Council form POS-010.

All Harden’s requests for judicial notice are GRANTED.

    II.         Evidentiary Objections

Harden’s Objections to Declaration of Robert Bisno in Support of Application for Publication

Objection Number 3 is sustained.

The remaining objections are overruled.

Harden’s Objections to Declaration of Due Diligence by Laurence Michelson

All objections are overruled.

Harden’s Objections to Declaration of Non-Service by Andrew L. Garza

Objection number 3 is sustained.

The remaining objections are overruled.

Harden’s Objections to Proofs of Publication

All objections are overruled.

  III.         MOTION TO QUASH SERVICE OF SUMMONS

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan¿(2006) 140 Cal.App.4th 403, 413.) A proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence, of the facts stated in the return. (Cal. Evid. Code, § 647; see¿American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar¿(2011) 194 Cal.App.4th 1419, 1428; cf.¿People v. Chavez¿(1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See¿Yadegar, supra, 194 Cal.App.4th at 1428.) 

Here, Harden argues that Santopietro once again attempted service at 1400 McKinney Street, Houston, Texas (the “McKinney Address”), where Harden has repeatedly stated under oath he does not reside. Harden argues that in so doing, Santopietro failed to heed the guidance provided by the Court of Appeal in Harden’s Petition for Writ of Mandate. (RJN Ex. 8.)

In Opposition, Santopietro argues that the declarations showing due diligence as to service at the McKinley address are both admissible, and dispositive of his diligent efforts to serve Harden there. Additionally, Santopietro notes that he attempted service at another possible home on Glenwood Drive (the “Glenwood Address”).  

However, the issue here is that the Court of Appeal has repeatedly held that Santopietro’s attempts to serve Harden at the McKinley address were ineffective.

In the October 21, 2021, Remittitur in this case, the Court of Appeal overruled this Court's decision to deny Plaintiff's Motion to Quash Service on two grounds:

First, the Court found that Santopietro "did not submit nonhearsay evidence that Harden continued to live at the McKinney address, such as declarations based on personal knowledge from the manager or concierge (RFJN Ex. 1 at p. 14.) 

The Court noted that “[t]he declaration on which an order for the publication of summons is based must state probative facts of the declarant’s own knowledge rather than hearsay information or merely legal conclusions. It has no probative value if it is hearsay as to the declarant and based on unsworn information. [¶] Declarations devoid of averment of facts personally known to the declarant to be true, that due diligence was exercised to effect personal service, ‘have consistently been held to be insufficient, and orders for service by publications based on [such declarations] have uniformly been held to have been beyond jurisdiction and void.’” (RFJN Ex. 1 at p. 16.)  (Quoting Sanford v. Smith (1970) 11 Cal.App.3d 991, 998–999; see also Miller v. Superior Court (1961) 195 Cal.App.2d 779, 783-784; accord Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42; Rios v. Singh (2021) 65 Cal.App.5th 871.)

Here, Santopietro has augmented the declarations from his attorney and from "expert skip tracer" Laurence Michelson with "People Search" search results, public records searches, credit card searches, and the registration for Harden's non-profit, "3 the Harden Way", all of which indicate that Harden still resides at the McKinney Address.

However, much of the effort that Santopietro argues constitutes reasonable diligence in personally serving Harden at the McKinney Address involves conversations with a security guard or concierge who told the process server that Harden resides there, but was not currently in. This is the same evidence that the Court of Appeal held was inadmissible as hearsay, so cannot be considered in determining reasonable diligence.

Second, the Court found that Santopietro failed to "present evidence of any attempts to serve Harden at either of the two other addresses that appeared as current residences on Santopietro’s own investigative reports, or offer any explanation for his failure to do so."

Here, Santopietro did attempt service at another address listed as Harden's current address in his public records search, 302 Glenwood Drive, Houston, Texas. However, he did not attempt service at any of the other current or past residences listed in his search results. 

More fatally, as Harden notes in his Motion, Harden was traded from the Houston Rockets to the Brooklyn Nets on January 14, 2021, one year before Santopietro filed the instant Application for Service by Publication. He has since been traded to the Philadelphia 76ers. Any Google search would immediately make it clear that Harden no longer plays for the Houston Rockets. 

Despite this, all Santopietro's efforts at serving Harden were focused on Texas addresses. This is especially problematic because, in its Remittitur, the Court of Appeal cited extensively to Kott v. Superior Court (1996) 45 Cal.App.4th 1126, in which the Defendant told Plaintiff that he no longer resided in California and had moved to Canada. The Trial Court granted plaintiff's Application for Service by Publication based on plaintiff's extensive efforts to find plaintiff's California address. The Kott Court overruled, stating that "once the plaintiff learned the defendant was a citizen of Canada, it could no longer rely on its earlier attempts to locate him in California."  The court noted that the plaintiff “made no effort whatsoever” to locate an address for the defendant in Canada and failed to consult obvious sources, such as asking the defendant’s counsel or serving interrogatories on his co-defendants. 

Here, it should have been obvious to Santopietro that Harden had moved, at least partially, to New York, following his trade from the Rockets. However, Santopietro provides no evidence showing that he attempted to discover Harden's New York address whatsoever. 

Therefore, following the guidance of the Court of Appeal, this Court cannot find that Santopietro demonstrated due diligence to serve Harden before applying for publication.

Accordingly, Harden’s Motion to Quash Service of Summons and to Set Aside and Recall Order for Publication is GRANTED.

DATED:  October 13, 2022           

______________________________

Hon. Robert S. Draper

Judge of the Superior Court