Judge Ronald F. Frank, Case Number: 24TRCV02286, Date: 2024-10-04 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV02286, Date: 2024-10-04 Tentative Ruling

Case Number: 24TRCV02286 Hearing Date: October 4, 2024 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: October 4, 2024

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CASE NUMBER: 24TRCV02286

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MOVING PARTY: Plaintiff Alan Richard Vasquez

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RESPONDING PARTY: Defendant Yanira Yvette Covarrubias

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TRIAL DATE: None Set

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MOTION:¿ (1) Motion to Relate Cases

(2) Request for Waiver of Notice

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Tentative Rulings: (1), (2) Denied. Without notice of this lawsuit to Defendant, the Court cannot rule on the notice of related cases. Further, the Court cannot order a waiver of Defendant’s Due Process right to notice

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I. BACKGROUND¿¿¿

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On July 10, 2023, Plaintiff Alan Richard Vasquez (“Plaintiff”) filed a small claims action (231WSC01008) against Defendant Yanira Yvette Covarrubias (“Defendant”) to recover his security deposit from his tenancy at 11031 Burin Ave., Inglewood, California, 90304 (“Burin property”). (Motion to Relate Cases, p. 3.) Plaintiff was awarded a judgment in the amount of $5,075.00. (Motion to Relate Cases, p. 3, Exhibit A.)

The moving papers assert that on November 3, 2023, Defendant created a limited liability company named 11031 Burin Ave. LLC and transferred the Burin property to this LLC on December 5, 2023. (Motion to Relate Cases, p. 3, Exhibit B, Exhibit C.)

Plaintiff also claims that Defendant failed to appear at an order to appear and produce in the small claims case, and on July 5, 2024, the court issued a bench warrant for Defendant. (Motion to Relate Cases, p. 3, Exhibit F.)

On July 10, 2024, Plaintiff filed the instant case (24TRCV02286), seeking to invalidate the transfer of the property. Plaintiff asserts three causes of action: (1) fraudulent transfer; (2) declaratory relief; and (3) injunctive relief. (Complaint, p. 2.) On August 8, 2024, Plaintiff filed a Notice of Lien in a different pending case in which Ms. Covarrubia is a Plaintiff, Case No. 23TRCV03241, to secure the unpaid judgment. (Motion to Relate Cases, p. 3, Exhibit E.) ¿

On September 5, 2024, Plaintiff filed the instant motion seeking to relate the small claims action 23IWSC01008 and the fraudulent conveyance case. Plaintiff also requests waiver of

notice on Defendant after the Sheriff was unable to locate Ms. Covarrubias at her last known address.

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¿III. ANALYSIS¿¿

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A. Legal Standards¿¿

Pursuant to Los Angeles Superior Court Local Rule 3.3(f)(3), “[i]n the event that the judge designated under California Rules of Court, rule 3.300(h)(1)(A)(B)(C) to make the decision, does not order related any of the cases set forth in the Notice of Related Cases, any party may file a motion to have the cases related. Department 1 shall hear the motion, if the cases are all pending in the Central District or are pending in two or more different districts.” (See also Cal. Rules of Court, rule 3.300(h)(1)(D).)

“The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial proceeding.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 54.) Service of the Summons and Complaint on a defendant is an essential aspect of procedural due process, and a ruling or judgment taken against a party who was not give actual notice of the pending lawsuit would entitle the defendant to vacate any judgment or award made in the case against her without proper notice. “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

“Section 415.20, subdivisions (a) and (b) authorize substitute service of process in lieu of personal delivery.” (Ellard, supra, 94 Cal.App.4th at p. 544.) Code of Civil Procedure Section 415.20, subdivision (b) states: “If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, ... in the presence of a competent member of the household or a person apparently in charge . . . , and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

“”Ordinarily, ... two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” (Note, Substituted Service of Process on Individuals: Code of Civil Procedure Section 415.20(b), supra, 21 Hastings L.J. at p. 1277, quoted in Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392.) Another form of substituted service permitted by California law is service by publication, pursuant to Code of Civil Procedure section 415.50. “Although section 415.50 provides that the summons must be published in a designated newspaper that is ‘most likely to give actual notice’ to the defendant, it does not require that the defendant actually see the publication.” (Rios v. Singh (2021) 65 Cal.App.5th 871, 882.)

B. Discussion

Cases are related when they (1) involve the same parties and are based on the same or similar claims, (2) arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact, (3) involve claims against, title to, possession of, or damages to the same property, or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges. (Cal. Rules of Court, rule 3.300(a).)

Plaintiff contends both the small claims case and the civil case arise from Defendant’s refusal to return Plaintiff’s security deposit and her later efforts to evade the judgement by transferring the Burin Property. (Motion to Relate Cases, p. 4.) Plaintiff argues that relating the cases will promote judicial efficiency because both cases involve the same parties, facts, and core issue of enforcing the small claims judgment. (Motion to Relate Cases, p. 4.) Here, while both cases involve the same parties, Plaintiff failed to give notice of the fraudulent conveyance suit to Ms. Covorrubias nor did Plaintiff provide her with notice of this Motion to Relate the cases. A defendant has a right to notice and an opportunity to be heard, a right requiring that formal notice of the lawsuit and of such a motion be given in advance of the hearing. Without service of the Summons and Complaint on Defendant, the Court lacks jurisdiction over the Defendant sufficient to enter an order against her.

The motion thus also seeks for the court to waive the requirement of Plaintiff’s service of the present motion on Defendant. Plaintiff argues that he has made diligent efforts to serve Defendant, and all were unsuccessful. (Motion to Relate Cases, p. 4.) Plaintiff has provided the Court with a Declaration that the Los Angeles County Sherriff’s Department attempted to serve Defendant at her last known address, where they discovered she moved out two months prior and had not left a forwarding address. (Declaration of Alan Vasquez, ¶ 9, Exhibit D.) While Plaintiff argues that these actions render further notice attempts as futile, the Court disagrees.

Substituted service is permissible “only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the individual defendant.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) Reasonable diligence is satisfied by “[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 [voters’ registries and the assessor’s office property indices situated near the defendant’s last known location] generally are sufficient.” (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 338.)

Plaintiff has not shown attempts to learn Defendant’s whereabouts or new address, beyond inquiry by the Los Angeles County Sherrif’s Department. Nor has plaintiff sought other substitute service methods nor exhausted all other reasonable methods of attempted service. While the efforts made to locate Defendant to date are part of due diligence, they are not sufficient for the Court to waive the Defendant’s right to notice. Accordingly, Plaintiff must demonstrate further diligence and, failing such further efforts, apply to the Court for service by publication. But the Court will not waive Defendant’s Due Process rights.

IV. CONCLUSION¿¿¿

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Plaintiff’s Motion to Deem Cases Related is DENIED, without prejudice to being raised in the future after Plaintiff has served the Defendant with the Summons and Complaint, and after notice to Defendant of the motion to relate the cases.

The request for Waiver of Notice is DENIED.