Judge Stephen P. Pfahler, Case Number: 23STCP00613, Date: 2024-04-10 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCP00613, Date: 2024-04-10 Tentative Ruling

Case Number: 23STCP00613 Hearing Date: April 10, 2024 Dept: 68

Dept. 68

Date: 4-10-24

Case # 23STCP00613

Trial Dates: N/A

PETITION

MOVING PARTY: Petitioner, David Kartch

RESPONDING PARTY: Unopposed/Respondents, David Gutierrez, et al.

RELIEF REQUESTED

Hearing on Motion for Issuance of Order Directing the Redaction of Personal Information from Public Indexes and Databases

SUMMARY OF ACTION

On February 28, 2023, David Kartch filed a petition for removal of personal information from public indexes and databases due to suspicion of potential identity theft. Kartch specifically represents that a business entity identified as DAGUT Group Inc., and agent for service David Gutierrez unlawfully uses Kartch’s personal address in its corporate registration documents with the California Secretary of State.

RULING: Continued.

Petitioner David Kartch moves for relief pursuant to Civil Code section 1798.201:

“A person who has learned or reasonably suspects that his or her personal identifying information has been used unlawfully, as described in subdivision (a) of Section 530.5 of the Penal Code, in a business entity filing, and has initiated a law enforcement investigation in accordance with subdivision (a) of Section 530.6 of the Penal Code, may petition the superior court in the county in which the person resides for an order, which may be granted ex parte, directing the alleged perpetrator of the act described in paragraph (1) of subdivision (c) of Section 530.5 of the Penal Code, if known, and the person using the personal identifying information in the business entity filing to appear at a hearing before the court and show cause for both of the following:

(a) Why the personal identifying information should not be labeled to show the information is impersonated and does not reflect the person's identity.

(b) Why the personal identifying information should be associated with the business entity.”

(Civ. Code, § 1798.201.)

“(a) A petition filed pursuant to Section 1798.201 shall be heard and determined based on declarations, affidavits, police reports, or other material, relevant, and reliable information submitted by the parties or ordered to be made part of the record by the court.

(b) If the court determines the petition is meritorious and there is no reasonable cause to believe that the victim's personal identifying information has been used lawfully in the business entity filing, the court shall make a finding that the victim's personal identifying information has been used unlawfully in the business entity filing and shall issue an order certifying this determination.

(1) Order the name and associated personal identifying information in the business entity filing to be redacted or labeled to show that the data is impersonated and does not reflect the victim's identity.

(2) Order the data to be removed from publicly accessible electronic indexes and databases.

(d) A determination made pursuant to subdivision (b) may be vacated at any time if the petition or any information submitted in support of the petition is found to contain any material misrepresentation or was obtained by fraud.

(e) The Judicial Council shall develop a form for issuing an order of determination pursuant to this section.

(f) An order issued pursuant to subdivision (c) shall be filed with the Secretary of State.”

Civ. Code, § 1798.202

The subject motion constitutes a renewed motion. On October 20, 2023, the court considered the prior motion and wrote in relevant part:

“Based on the wording of that code section, it appears that DAGUT Group Inc. is entitled to notice of the hearing and an opportunity to appear at the hearing on this motion to explain the use of the address. There is no indication from the paperwork filed by Mr. Kartch that DAGUT Group Inc. has been served. Before the Court can hear this motion and grant the requested relief, Mr. Kartch must serve DAGUT Group Inc.

“The Court recognizes that part of the problem is that Petitioner does not presently know how to serve the person, David Gutierrez, who appears to have filed the Article of Incorporation that included his address. Nonetheless, before this Court may adjudicate the matter, the other parties to be impacted should be given the right to participate in this proceeding. Further, the showing by Petitioner at this time does not establish that any personal identifying information about Petitioner has been used.

...

“The Court will not rule on this motion at this time due to the failure of Petitioner to serve the person or entity that will be impacted by the requested order. The Motion is DENIED without prejudice.”

In the renewed motion, Kartch articulates the efforts to effect service on David Gutierrez, purported agent for DAGUT Group, Inc., but the inability to confirm the identity of the subject David Gutierrez. The court accepts the basis of the application, but again must defer consideration of the application unless and until Petitioner can establish compliance with due process requirements. Given the inability to locate Gutierrez or any other unique identifying information regarding DAGUT Group Inc., the court directs Petitioner to seek leave for service by publication.

(a) 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 …

(e) As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require that a search be conducted of public databases where access by a registered process server to residential addresses is prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles.

(Code Civ. Proc., § 415.50.)

“Publication of notice pursuant to this section shall be once a week for four successive weeks. Four publications in a newspaper regularly published once a week or oftener, with at least five days intervening between the respective publication dates not counting such publication dates, are sufficient. The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day.” (Gov. Code, § 6064.)

“If a defendant's address is ascertainable, a method of service superior to publication must be employed, because constitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort. (Citations.) … The term 'reasonable diligence ‘... denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. (Citations.) 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.” (Citations.) ‘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. (Citations.).’” (Watts v. Crawford (1995) 10 Cal.4th 743, 749 [footnote 5].)

The court otherwise declines to make a finding under the standard for establishing unlawful use of Petitioners information. “Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.” (Pen. Code, § 530.5, subd. (a).) The prior court raised similar concern. The court therefore invites petitioner to present additional evidence in support of the actual substantive request regarding the necessity for relief.

The court therefore sets a new OSC re: Hearing on Motion for June 6, 2024. The intention of the continuance is to allow for Petitioner to seek publication of the petition with NEW hearing date, meet the minimum four week circulation requirement, including submission of proof of publication filed with the court, and present a supplemental declaration regarding unlawful use beyond the simple existence of the address itself. The court requires the information in order to make both due process findings and substantive compliance before allowing submission of the order to the California Secretary of State.

Petitioner need not provide notice to himself or the unserved respondents.