Judge: Walter P. Schwarm, Case: 30-2020-01170757, Date: 2022-11-01 Tentative Ruling

Plaintiffs’ (Vitagreen International LLC and Crystal Yang) Motion for an Order Authorizing Service of Summons by Publication (Motion), filed on 6-14-22 under ROA No. 84, is GRANTED.

Code of Civil Procedure section 415.50 states in part, “(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 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. [¶] (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.”

Rios v. Singh (2021) 65 Cal.App.5th 871, 880-881 (Rios), states, “A number of honest attempts to learn the defendant's whereabouts through inquiry and investigation generally are sufficient. [Citation.] A plaintiff must show such efforts because it is generally recognized that service by publication rarely results in actual notice. [Citations.] Whether the plaintiff exercised the diligence necessary to justify resort to service by publication depends on the facts of the case. [Citation.] The question is whether the plaintiff took the steps a reasonable person who truly desired to give notice of the action would have taken under the circumstances. [Citation.] We review a trial court's finding that the defendant could not with reasonable diligence be served by a means superior to publication for substantial evidence. [Citation.]” “A declaration supporting a section 415.50 application must state probative facts based on personal knowledge rather than hearsay or legal conclusion. [Citations.]” (Id., at p. 882.)

Plaintiffs’ have presented the following evidence to support the Motion: (1) On or about September 24, 2020, the Defendant's prior counsel, Eric W. Ching, sent me at the Yorba Linda address a ‘Sixty-Day Notice to Terminate.’ . . . [¶] On or about November 18, 2020, I, along with Vitagreen International, LLC., initiated this action against the Defendant. [¶] To my understanding, the Defendant's only address in the United States was 19367 Via De La Cielo, Yorba Linda) CA 92886-2746. This is the subject property in this lawsuit and my current residence. [¶] The Defendant has not lived at this address for years. [¶] The only other residential address that I know for the Defendant is No. 702, Unit 2, Floor 7, 15 Building 3, Tai Ping Street Yard 8, Xi Cheng District, Beijing, China 100035 . . . [¶] In or about January of 2022, in order to confirm that the China Address was current, I asked one of my acquaintances in China, Xiujing Kang, to determine if the Defendant was leaving and  entering the parking structure for the China Address. [¶] I gave Xiujing Kan a photo of Defendant.” (Yang Decl., ¶¶ 2-8.); (2) Plaintiff’s counsel “. . . did a public records search on Westlaw to determine if the Defendant had any additional addresses in the United States other than the 19638 Via De La Cielo, Yorba Linda, CA 92886-2746. [¶] My research confirmed that Defendant’s only current address in this country was this Yorba Linda address.” (Sutton Decl., ¶¶ 4 and 5.); (3) “Or about September 24, 2021, I attempted to serve the Defendant at No. 702, Unit 2, Floor 7, 6 Building 3, Tai Ping Street Yard 8, Xi Cheng District, Beijing, China 100035, pursuant to the Hague  Convention. Service was to be effectuate by the Chinese government. . . . [¶] Other than submitting the application with the requested information, I had no authority to instruct or dictate to the Chinese government official as to how often, when or in what manner they  should try to serve the Defendant. [¶] The reason I used the procedures set forth in the Hague Convention to serve the Defendant is  because the China Address is in China and its rules requires us to utilize their procedures. [¶]. On or about April l4, 2022, I received the China Certificate from the Chinese government showing that their process server was unable to serve the Defendant at his Chinese Address ‘due to  that the address served has long been unoccupied.’ . . . [¶] On or about April 6, 2022, I called the Defendant at his last phone number known to my clients and I asked Defendant if he was aware of this lawsuit and if he would agree to accept service of the Summons and Complaint by ‘signing court papers.’ No other matters related to the case were  discussed. The Defendant responded that he was aware of this case. Defendant also initially stated that he was willing to accept service but then stated he wanted to talk to his counsel in the UD Case. [¶] Instead, approximately two hours after I called the Defendant, Mr. Luu wrote me an email demanding that my office no longer contact the Defendant directly, despite the fact that Mr. Luu has consistently stated that he is not Defendant's attorney of record in this case. [¶] Mr. Luu also confirmed that Defendant's China Address is his current address and continued to refuse Plaintiffs' request to accept service on Defendant's behalf.” (Hsu Decl., ¶¶ 2-8.)

Based on the above, Defendants have demonstrated reasonable diligence within the meaning of Code of Civil Procedure section 415.50, subdivision (a), and Rios.  Plaintiffs have confirmed with Defendant’s counsel that Defendant’s current address is in China.  Plaintiffs used the Hague Convention to attempt to complete service which was unsuccessful. Plaintiffs have taken reasonable steps to give Defendant notice of this action. 

Therefore, the court GRANTS Plaintiffs’ (Vitagreen International LLC and Crystal Yang) Motion for an Order Authorizing Service of Summons by Publication filed on 6-14-22 under ROA No. 84.  The court authorizes Plaintiffs to proceed with service by publication in the Orange County Register pursuant to Code of Civil Procedure section 415.50.

Court Clerk is to give notice.