Judge William A. Crowfoot, Case Number: 23AHCV00077, Date: 2023-12-15 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00077, Date: 2023-12-15 Tentative Ruling

This is an action to domesticate a foreign judgment arising from post-bankruptcy litigation between the parties. Plaintiffs Alan Chang Wah Tang and Hou Chung Man (collectively, “Plaintiffs”) are the trustees of the bankruptcy estate belonging to defendant Lee Siu Fung, Siegfried (“Defendant”). Defendant’s surname is Lee and Siegfried is his adopted name. From June 2020 to February 2021, Defendant was ordered by the High Court of the Hong Kong Special Administrative Region Court of First Instance (the “Hong Kong High Court”) to pay three sets of legal costs, totaling $6.08m HK plus interest (the “Hong Kong Judgments”). As of January 1, 2023, the sums payable and owed by Defendant is approximately $9.02m HK.

On March 13, 2023, the Court granted Defendant’s motion to quash service of summons. On August 23, 2023, Plaintiff filed an application for publication supported by the declaration of Max Casal. On August 24, 2023, the Court granted Plaintiff’s application for publication.

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant.... When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440

Code of Civil Procedure section 415.50 sets forth the requirements for service by publication, including: “(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.... [¶] ... [¶] (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.” In determining whether a plaintiff has exercised “reasonable diligence,” the court examines the submitted evidence to see whether the plaintiff “took those steps a reasonable person who truly desired to give notice would have taken under the circumstances.” (Donel, Inc. v. Badalian (1978) 87 Cal. App.3d 327, 333 (Donel).) The “term ‘reasonable diligence’ ... denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.” (Kott v. Superior Court (1966) 45 Cal.App. 4th 1126, 1137, quotation omitted.) “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.” (Watts v. Crawford (1995) 10 Cal. 4th 743, 749, fn.5, citations omitted; see also County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450 [“We think it safe to say that there is really little expectation that a defendant [served by publication] will in fact acquire actual notice from the publication.”].) Therefore, service by publication should be allowed only “as a last resort.” (Donel, supra, 87 Cal. App. 3d at p. 333.)

Plaintiff made several attempts to serve Defendant after the Court granted Defendant’s first motion to quash. On March 22, 2023, Plaintiff filed an amended petition (“FAC”) and attempted to serve Defendant by mail with a notice of acknowledgement of receipt. (Casal Decl. ISO Application for Publication (“Casal Decl. ISO App.”, ¶ 3; Exs. A, B.) Plaintiff was informed that defense counsel would not acknowledge receipt of the summons and FAC. (Id., ¶ 4, Ex. C.) Plaintiff also sent the FAC and notice of acknowledgment of receipt in an envelope addressed to Defendant at 1372 Edgehill Pl. in Pasadena, California (“Edgill Place”). (Id., ¶ 3; Ex. D.) This mail was returned with a label stating “Return to Sender [¶] Attempted – Not Known [¶] Unable to Forward”). (Id., ¶ 5; Ex. D.) On April 24, 3033, Plaintiff requested the Los Angeles County Sheriff’s Department personally serve Defendant at Edgehill Place. (Id., ¶ 6, Ex. E.) The Sheriff’s Department attempted to serve Defendant on June 6 and June 16, 2023. (Id., Ex. G.) A certified process server from Nationwide Legal, LLC, also tried to serve Defendant on June 7, 8, and 9, 2023. (Id., Ex. F.)

Multiple documents attached to Plaintiff’s counsel’s declaration reflect that Defendant is associated with Edgehill Place. (Id., Exs. J-R.) Additionally, in February 2023, Defendant previously executed a declaration under penalty of perjury averring that he resided at Edgehill Place. (Id., Ex. K.) This declaration also authenticated a copy of his driver’s license which lists the same address. (Ibid.)

First, Defendant argues that Plaintiff failed to use reasonable diligence to locate him before attempting service by publication. (Motion, p. 6.) The Sheriff’s Department report included a declaration from Deputy Sofia B. Buzzelli. Buzzelli noted that service could not be completed because “Deft has moved out of state, to Huston [sic], TX per homeowner at location.” (Casal Decl. ISO App., Ex. G.) Defendant argues that Plaintiff did not use reasonable diligence because there was no attempt to verify the deputy’s statement by submitting a Request for Change of Address or Boxholder Information Needed for Service of Legal Process form to the post office. (Motion, p. 6.) However, Plaintiff’s counsel had received information from two separate sources that forwarding was unavailable: (1) the returned mail received on April 10, 2023, and (2) the deputy’s declaration.

Second, Defendant objects to Plaintiff’s counsel’s declaration submitted in support of the application for publication. The Court overrules Objection Nos. 1, 2, 3, 4, 5, 7, 10, 12, on the grounds that Plaintiff’s counsel has personal knowledge of his own actions. The Court sustains Objection Nos. 6, 8 to statements made “on information and belief.” Objection Nos. 9, 11, 13, 15, 16 are sustained to the extent that Plaintiff’s counsel’s statements regarding Defendant’s residence, ownership of dogs, and status as a registered agent of service are offered for the truth of the matter asserted, but overruled as to Plaintiff’s counsel’s impressions after reviewing the attached documents. (Objection Nos. 9, 11, 13.) Even considering Plaintiff’s evidentiary objections, the admissible portions of Plaintiff’s counsel’s declaration support a finding that Plaintiff exercised reasonable diligence to locate and serve Defendant. Defendant is an officer and the agent for service for process for multiple companies in California and documents on file with the California Secretary of State identify Edgehill Place as his address.

Third, Defendant argues that Plaintiff should have called the numerous businesses that Defendant was allegedly affiliated with in order to exhaust all possible addresses that he could have been served at. Defendant does not explain how a phone call would have made any difference, as the documentation about these businesses only reflected (and therefore confirmed) Defendant’s address at Edgehill Place.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.