Judge: Steven A. Ellis, Case: 23STCV07058, Date: 2024-09-06 Tentative Ruling
Case Number: 23STCV07058 Hearing Date: September 6, 2024 Dept: 29
Odabashian v. Mendez
23STCV07058
Plaintiff’s Motion to Serve by Publication or Posting
Tentative
The motion is denied.
Background
On March 30, 2023, Sarkis S. Odabachian (“Plaintiff”)
filed a complaint against Jennifer Mendez (“Defendant”) and Does 1 through 25 for
motor vehicle negligence and general negligence arising out of an accident
occurring on November 24, 2021.
On July 31,
2024, Plaintiff filed this motion to serve Defendant by publication or posting.
Request for Judicial Notice
Plaintiff requests Judicial Notice of the
records from the Department of Motor Vehicles relating to the registration of
Plaintiff’s vehicle. The Court GRANTS Plaintiff’s request under Evidence Code
section 452(c).
Legal Standard
Proper service of a summons on each defendant
is a constitutional and statutory requirement in all civil actions. Without proper service (or, for example,
consent or waiver), a court does not acquire jurisdiction over a defendant, and
in general any judgment rendered against the defendant is void. (E.g., Kremerman v. White (2021) 71
Cal.App.5th 358, 371; County of San Diego v. Gorham (2010) 186
Cal.App.4th 1215, 1231.)
The Code of Civil Procedure provides for
service on a defendant within the State of California by four basic methods:
(1) personal service; (2) substitute service; (3) service by mail and
acknowledgement of receipt; and (4) service by publication. (Code Civ. Proc., §§ 415.10, 415.20,
415.30, 415.50.)
“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
Plaintiff
seeks to serve Defendant by publication.
Service by publication has been described by the California Supreme
Court as a “last resort.” (Watts,
supra, 10 Cal.4th at p. 749, fn. 5.)
Plaintiff’s counsel hired Dr. Lucas Murrey and Dean
DeVito to research, locate, and serve Defendant based on the address of her
vehicle registration and other information. (Id., ¶ 5.) (The
Court notes that counsel states a First Amended Complaint was filed on February
27, 2024. [Petale Decl., ¶ 2.] No such document has been filed with the court.
The attached complaint is actually the original complaint filed on March 30,
2023.)
Mr. DeVito states that went to two addresses, 1706
West Sunset Blvd., Apt 314 in Los Angeles, and 3311 East Pico Boulevard in Los
Angeles. (Devito Decl., ¶¶ 1-3.) At the Sunset Boulevard address, he spoke to
an adult who stated that Defendant does not live there but does visit
sometimes. (Id., ¶ 1.) At the Pico Boulevard address, Mr. DeVito was
not able to contact anyone. (Id., ¶
2.) Mr. DeVito also attempted to reach
Defendant by email but did not receive any response. (Id., ¶ 4.)
Dr. Murrey visited the Pico Boulevard address three
times in April 2023. On the first and
second attempts, no one answered the door and no one answered a telephone
number listed for the address. (Murrey
Decl., ¶¶ 5, 6.) On the third attempt,
on April 24, 2023, Dr. Murrey spoke to an adult male at the telephone number
who stated that Defendant “was not here now.”
(Id., ¶ 7.) Dr. Murrey was able
to see and hear the adult male “through the gate.” (Id., ¶¶ 7-8.) On each of the three attempts, Dr. Murrey
left the legal papers outside the door of the address. (Id., ¶¶ 5-8.)
Dr. Murrey also attempted on three occasions in February
2024 to serve Defendant at the Sunset Boulevard address. Those attempts were unsuccessful, but he left
a copy of the summons and complaint outside the door and mailed a copy to Defendant
at each of the two addressses. (Id., ¶¶
13-16.)
It is clear that Plaintiff has been making efforts
to serve Defendant. But Plaintiff has
not yet made a sufficient showing for the “last resort” of service by
publication. Plaintiff has not, for
example, attempted to serve Defendant by notice and acknowledgement, one of the
statutorily authorized methods for service.
Nor is it clear that substituted service cannot be effected. And Plaintiff has not provided sufficient evidence
of all of the efforts made to locate Defendant’s whereabouts.
Finally, the Court notes that if Plaintiff files a
subsequent request for service by publication, Plaintiff must present some
evidence of the causes of action that Plaintiff alleges against Defendant and the
proposed periodical (here the Metropolitan
News) was selected as a method to provide
notice to Defendant.
Therefore, the Court DENIES Plaintiff’s motion to
serve by publication. The denial is
without prejudice to a subsequent motion supported by additional evidence.
Conclusion
The Court DENIES Plaintiff’s motion to serve by publication.
Moving party is
ORDERED to give notice.