Judge Steven A. Ellis, Case Number: 22STCV06463, Date: 2023-12-28 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV06463, Date: 2023-12-28 Tentative Ruling

Case Number: 22STCV06463 Hearing Date: January 26, 2024 Dept: 29

Motion to Serve by Publication or Posting filed by Plaintiff Salaheddine El Moqaddem.

Tentative

The motion is DENIED.

Background

Plaintiff Salaheddine El Moqaddem (“Plaintiff”) filed suit against Albert Gregory Pinto (“Defendant”) and DOES 1 through 25, alleging that Defendant broken into her home twice.

Plaintiff filed a Complaint on February 22, 2022, alleging five (5) causes of action of (1) Trespassing/Home Invasion (2) Negligence, (3) Property Damage, (4) Intentional Infliction of Emotional Damage, and (5) Negligent Infliction of Emotional Damage.

On August 21, 2023, Plaintiff filed this motion to serve by publication or posting.

Legal Standard

“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; or (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).)¿¿¿

“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.” (Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.)¿The means of service described in sections 415.10 through 415.40 make service by publication unnecessary except where a defendant's whereabouts and his dwelling house or usual place of abode, etc. cannot be ascertained with reasonable diligence.” (Ibid.) The term “reasonable diligence” denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.¿(Ibid.) Several 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. (Ibid.) These are the likely sources of information, and consequently must be searched before resorting to service by publication. (Ibid.) 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.”¿ (Ibid.)

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.)¿

Discussion

On February 22, 2022, Plaintiff filed his complaint with the Court. Plaintiff states he has been attempting to serve Defendant to no avail. Plaintiff states he attempted at his previous address in Santa Monica. (El Moqaddem Affidavit, ¶ 1.) Plaintiff no longer lives at this address. (Id.) Plaintiff states that the State Bar reflects Defendant’s address to be in Brownwood, Texas. (Id., ¶ 2.) Plaintff retained a process server, who after several attempts, Plaintff does not state how many, was unable to serve Defendant. (Id., ¶ 3)

Plaintiff attempted to serve Defendant through registered UPS Mail Delivery, which has been filed with the Court. (Id., ¶ 4.) Plaintiff attempted to serve Defendant in Las Vegas at his mother’s address by personal and substituted service but was unsuccessful. (Id., ¶ 5.) Plaintiff tried to serve a copy to mother of Defendant but was unsuccessful. (Id., ¶ 6.) Plaintiff attests that he has check the Texas and Federal prison system but did not see Defendant listed on either. (Id., ¶ 7.)

Based on Plaintiff’s affidavit (declaration), it appears that Plaintiff has identified Defendant’s address. Plaintiff has not submitted sufficient evidence that he has exhausted all reasonable efforts to serve Defendant at that address, including, but not limited to, substitute service, service by notice and acknowledgement, and service by registered mail with return receipt. (See Code Civ. Proc., §§ 415.20, 415.30, 415.40.)

Therefore, the Court DENIES Plaintiff’s motion to serve by publication at this time on this record.

Conclusion

Plaintiff’s motion for an order for service by publication is DENIED.

Moving party is ORDERED to give notice.