Opinion
B311738
08-19-2021
JAMES HARDEN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent GEORGE SANTOPIENTRO, Real Party in Interest.
Raymond John Berkeris for Petitioner. No appearance for Respondent. Robert Henry Bisno for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Petition is granted with instructions Los Angeles County Super. Ct. No. 19STCV32597. Robert S. Draper, Judge.
Raymond John Berkeris for Petitioner.
No appearance for Respondent.
Robert Henry Bisno for Real Party in Interest.
COLLINS, J.
This is the second petition filed by James Harden, a defendant in a lawsuit filed by real party in interest George Santopietro. After Santopietro served Harden by substituted service under Code of Civil Procedure section 415.20 at an address in Houston, Texas, Harden moved to quash service, declaring that he no longer lived at that address. The trial court denied the motion to quash and Harden petitioned for writ relief. We issued an alternative writ on October 22, 2020, directing the trial court to vacate its order because it was based on hearsay evidence: the process server stated in a declaration that the building concierge told him Harden lived at that address.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In the meantime, Santopietro applied for an order allowing service on Harden by publication. In support of his application, Santopietro submitted the same declarations attesting to his attempts at service at the Houston address. The trial court issued the order allowing service by publication and subsequently denied Harden's motion to quash service.
Harden again petitioned for an extraordinary writ of mandate directing the trial court to vacate its prior order and enter an order granting his motion to quash. He argued that Santopietro's evidence of attempted service was insufficient to establish the due diligence required for an order allowing service by publication. We issued an alternative writ. The trial court declined to comply. We conclude that Santopietro failed to sufficiently demonstrate reasonable diligence in attempting to serve Harden at his residence before applying for service by publication. Thus, the trial court erred in denying Harden's motion to quash service. We therefore grant the petition.
FACTUAL AND PROCEDURAL HISTORY
I. Complaint and Attempted Service
Santopietro filed a complaint in September 2019, alleging breach of contract against Harden and other defendants. In May 2020, Santopietro attempted to serve Harden at a residential address on McKinney Street in Houston, Texas (the McKinney Street address). According to Santopietro's process server, after four unsuccessful attempts to enter the apartment complex, he left the summons and complaint with a concierge on site and later mailed a copy of the documents to the same address.
None of the other defendants is a party to the instant writ petition.
II. First Motion to Quash and Writ Petition
Harden filed a motion to quash service of the summons on June 5, 2020. He included a declaration stating that he did not reside at the McKinney Street address, had not resided there since 2013, and that address “is not my current home address.” Harden also declared that he was not in Texas on May 1, 2020, when the process server attempted service. Harden did not provide his current address.
Santopietro filed an opposition, including declarations from his attorney, Robert Bisno, and process server, Andrew Garza. Bisno declared that he retained Garza, a licensed process server, to serve Harden. Bisno also stated that he “utilized the resources of an investigative service to establish” where Harden lived, based on “investigative reports” created in March and June 2020. The attached reports listed the McKinney Street address as Harden's residence from 2014 to June 2020. In addition to multiple prior addresses, the reports included two other Texas addresses as residences for Harden between 2014 and May or June 2020.
In Garza's declaration, he stated that he went to the McKinney Street address to serve Harden on April 24, April 26, April 28, and May 1, 2020. Each time, he “advised the concierge mgr., Curtis, in the building that I had documents to serve Mr. Harden...about a legal proceeding.” Each time, Garza stated he asked the concierge manager whether Harden lived in the specified unit in the building, and “[e]ach and every time I was told, ‘yes, but you have to have his number to call him yourself like the other person who came here for James Harden, that's the best I can do. We won't call up.” The manager refused to allow Garza to proceed to the unit. Garza also stated that the manager of the building “separately and independently” confirmed that Harden lived in the building, but told him that “their policy unfortunately is not to interfere with tenants in legal proceedings.” Garza served the concierge on May 1, 2020 by handing him a copy of the documents and then mailed copies to the McKinney Street address.
The court denied the motion to quash in August 2020. In September 2020, Harden filed a petition for writ of mandate in this court. On October 22, 2020, we issued an alternative writ of mandate directing the trial court to vacate its prior order and grant the motion to quash “on the ground that [Santopietro] has failed to carry his burden of proof by admissible nonhearsay evidence that the addresses at which substituted service of process was made were petitioners' ‘dwelling house' or ‘usual place of abode.'” On November 9, 2020, the trial court complied, vacating its prior order and granting the motion to quash service. We accordingly dismissed the writ petition.
III. Service by Publication
On November 4, 2020, after we issued the alternative writ but before the trial court complied, Santopietro applied to the trial court for an order allowing him to serve Harden by publication in the Houston Chronicle. Santopietro again submitted declarations by Bisno and Garza. Bisno declared that that he was unable to serve Harden “[a]fter significant research, including visiting web cites [sic] where locating people are regularly performed, including Google, Zaba[search]... and Peoplefinders..., as well as further investigating where Defendant James Harden lives by a commercial service... and causing a licensed process server... to attempt to serve Defendant James Harden.” Bisno continued: “I have used diligent efforts, even more than diligent efforts, in attempting to serve Defendant James Harden and I have been unsuccessful in locating him for service.” Bisno again attached the March and June 2020 search reports, as well as a third report from October 2020. The most recent report listed the same three Texas addresses as Harden's place of residence as of September or October 2020.
Garza submitted a declaration dated October 28, 2020, but substantively similar to his prior declaration, except that he referred to the individual in the building lobby as the “security guard” rather than as a concierge. Garza also stated that if the guard had told him Harden did not live at the McKinney Street address, “I would not have continued to attempt to serve him there.”
The trial court rejected the proposed order for failing to include publication in a California newspaper. Santopietro refiled his application for publication on November 19, 2020, adding a request to publish in the Los Angeles Times. Where the application prompted him to describe the “reasonable attempts to serve the defendant, ” Santopietro wrote: “Despite multiple attempts and a ruling by this Court that service was effected (reversed by the Court of Appeal) Mr. Harden evades service.” The court granted the application and issued an order for publication on December 1, 2020.
Inexplicably, Santopietro filed another application for service by publication on January 12, 2021, including the same declarations. The court approved Santopietro's application for publication on January 14, 2021, issuing an order for publication in the Houston Daily Review and Los Angeles Daily Journal. Santopietro filed a proof of publication on February 18, 2021.
The November 2020 application was approved by Judge C. Edward Simpson. The January 2021 application was approved by Judge James Blancarte.
IV. Second Motion to Quash and Writ Petition
On March 11, 2021, Harden filed a motion to quash service of the summons and to set aside and recall the orders for publication. He argued that Santopietro had not sufficiently demonstrated due diligence in attempting to serve him and was therefore not entitled to utilize service by publication. Harden pointed out that Santopietro had only attempted service at one address. He argued that Santopietro's declarations contained inadmissible hearsay and that Santopietro “failed to provide any admissible evidence he acted with reasonable diligence and exhausted all the available means of service prior to seeking the last-resort option of service by publication.” (Emphasis in original.) He noted that Santopietro's own search reports listed several other addresses in Texas for Harden, but that Santopietro had made no attempts at service at any of those addresses. He disputed the claim that he was “evading service, ” pointing out that although the complaint was filed in September 2019, no service attempts were made between September 2019 and April 24, 2020, nor were any attempted after May 1, 2020. He also raised several technical challenges to the manner and proof of publication.
Santopietro opposed. He argued that his investigative research and the four service attempts by Garza at the McKinney Street address constituted reasonable diligence. He also argued that he was not required to attempt to serve Harden at another address because the reports showed Harden lived at the McKinney Street address and was therefore most likely to receive actual notice of the lawsuit there.
After a hearing on April 6, 2021, the court adopted its tentative ruling and denied the motion to quash. The court granted Harden's request for judicial notice of 21 documents, including those related to the prior motion to quash and applications for publication. The court also sustained Harden's objection to Bisno's statement that Harden “filed a Declaration in this lawsuit in an effort to avoid being served.”
Harden's motion to quash was heard and denied by Judge Robert Draper.
Noting that “Harden is a public figure, ” the court found that Santopietro “previously attempted service at the address that research yielded to be correct, but the process server was prevented from service by the security guard.” Citing Cradduck v. Financial Indem. Co. (1966) 242 Cal.App.2d 850, 856 (Cradduck), the court also found that the hearsay statements in the declarations provided by Santopietro were admissible. In particular, the court cited the hearsay statement by the process server that the reason he continued to attempt service at the McKinney Street address “repeatedly is because the building's security guard and manager told him that Harden lives in the building.” The court concluded that “based on the sum of the evidence presented including Plaintiff's pre-service research and the fact that Harden is [a] public figure, Plaintiff exercised reasonable diligence in attempting to locate Harden and in attempting personal service at Harden's last known address before resorting to notice by publication. Reasonable diligence does not include attempting service at various address [sic] that People Search and other resources do not yield to be Harden's last known address.” The court also rejected Harden's technical challenges to the adequacy of the service by publication.
Harden described himself as a “professional basketball player and a very public figure.”
Harden timely filed this petition for writ of mandate. We issued an alternative writ, ordering the trial court to vacate its order and enter a new order granting the motion to quash service, or to show cause why a peremptory writ requiring it to do so should not issue. After the trial court declined to vacate its order, Harden filed a reply to the petition. Santopietro has not filed a written return.
A defendant may seek review of the denial of a motion to quash service of a summons by petition for a writ of mandate filed within 10 days of notice to the parties of the decision. (§ 418.10, subd. (c).)
At oral argument, Santopietro's counsel for the first time asserted that he was not properly served with the writ petition. Harden's counsel disputed this contention. In any event, “[w]e need not consider points raised for the first time at oral argument.” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 232, fn. 6; see also Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9.)
DISCUSSION
I. Legal Standards
A. Service by publication
In California, “the governing statutes afford the plaintiff a variety of means by which to effect service upon the defendant. Service may be accomplished by means of personal delivery of the summons and complaint to a party (§ 415.10), by delivery to the business office or dwelling of certain classes of parties (§§ 415.20, 416.10-416.90), by mailing (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40). Finally, if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order. (§ 415.50.)” (Watts v. Crawford (1995) 10 Cal.4th 743, 748.)
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.”
B. Motion to quash service
“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; see also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 794 [finding that until the plaintiff “makes at least a prima facie showing of the validity of service” on a motion to quash, the defendant “may stand mute”]; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“where a defendant properly moves to quash service of summons the burden is on the plaintiff to prove [the] facts requisite to the effective service”].)
We review the trial court's express or implied factual findings on a motion to quash service under the substantial evidence standard. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449; Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 535; Serafini v. Superior Court (1998) 68 Cal.App.4th 70, 77.) In doing so, we resolve all conflicts in the relevant evidence “against the appellant and in support of the order.” (Wolfe v. City of Alexandria (1990) 217 Cal.App.3d 541, 546). Thus, our inquiry here turns on whether the trial court's finding that Santopietro met his burden to establish effective service was supported by substantial evidence.
II. The Trial Court Erred in Denying Harden's Motion to Quash
Harden contends that service by publication was invalid because Santopietro failed to exercise reasonable diligence in attempting to serve Harden at his residence. He asserts that the trial court therefore erred in denying Harden's motion to quash service. We agree.
“[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1137 (Kott), quotation omitted.) As such, “‘[p]ersonal service remains the method of choice under the statutes and the constitution. When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.'” (Ibid., citations omitted.)
Section 415.50 specifies that service by publication is only permitted when the plaintiff presents evidence that “the party to be served cannot with reasonable diligence be served in another manner specified in this article.” 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, supra, 45 Cal.App.4th at p. 1137.) “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, supra, 10 Cal.4th at p. 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.”].) As such, service by publication should be allowed only “as a last resort.” (Donel, supra, 87 Cal.App.3d at p. 333.)
A plaintiff will generally satisfy his or her burden through “[a] number of honest attempts to learn [a] defendant's whereabouts or his address” such as by asking his relatives, friends, acquaintances, or employers, and by investigating “appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessor's office, near the defendant's last known location. These are likely sources of information, and consequently must be searched before resorting to service by publication.” (Kott, supra, 45 Cal.App.4th at p. 1137, citations omitted.) However, “the showing of diligence in a given case must rest on its own facts and ‘[n]o single formula nor mode of search can be said to constitute due diligence in every case.'” (Id. at pp. 1137-1138, quoting Donel, supra, 87 Cal.App.3d at p. 333.)
We conclude the evidence provided by Santopietro in support of his applications for service by publication failed to demonstrate that he conducted “exhaustive attempts” to locate and serve Harden. We previously overturned the trial court's denial of Harden's first motion to quash service, finding that the declarations and exhibits provided by Santopietro were insufficient to establish that Harden was served at his place of residence. (See Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 315 [“It is crucial that a connection be shown between the address at which substituted service is effectuated and the party alleged to be served.”]; Floveyor Internat., Ltd. v. Superior Court, supra, 59 Cal.App.4th at p. 796 [finding plaintiff's submission of a hearsay declaration failed to defeat motion to quash].) Given our prior rejection of Santopietro's evidence and Harden's sworn statement that he had not resided at the McKinney Street address since 2013, Santopietro was not entitled to rely on the same evidence as proof of reasonable efforts to serve Harden at his residence. This is particularly evident given the existence of several alternative current addresses revealed in Santopietro's own research. As such, the trial court lacked substantial evidence to conclude that Santopietro had made sufficient efforts at service to justify the “last resort” of service by publication.
Santopietro urges us to defer to the determination by three trial judges-two of whom granted his applications for publication and a third trial judge who denied Harden's motion to quash-that he exercised reasonable diligence based on his research efforts and multiple service attempts at the McKinney Street address. We find Kott, supra, 45 Cal.App.4th 1126 instructive here. In Kott, the trial court granted the defendant's first motion to quash service effected upon him at an office in California because it was not his usual place of business. (Id. at p. 1138.) At the hearing on that motion, the court and counsel discussed the fact that the defendant resided in, and was a citizen of Canada. (Ibid.) Two weeks later, the plaintiff applied for service by publication, again relying on his investigator's earlier unsuccessful efforts to locate the defendant in California. (Ibid.) The court granted the request for publication and then denied the defendant's motion to quash service. (Id. at p. 1132.) The appellate court granted the defendant's petition for writ of mandate, holding that once the plaintiff learned the defendant was a citizen of Canada, it could no longer rely on its earlier attempts to locate him in California. The court noted that the plaintiff “made no effort whatsoever” to locate an address for the defendant in Canada and failed to consult obvious sources, such as asking the defendant's counsel or serving interrogatories on his co-defendants. (Id. at pp. 1131, 1138-11399.)
Similarly, here, despite our prior rejection of Santopietro's evidence as proof of Harden's place of residence and Harden's declaration that he did not live at the McKinney Street address, Santopietro made no further attempts to serve Harden in any other manner or location. Instead, he applied for service by publication based on the same evidence. He did not submit nonhearsay evidence that Harden continued to live at the McKinney Street address, such as declarations based on personal knowledge from the manager or concierge. Nor did Santopietro present evidence of any attempts to serve Harden at either of the two other addresses that appeared as current residences on Santopietro's own investigative reports, or offer any explanation for his failure to do so. As such, Santopietro's continued reliance on his “investigator's earlier efforts made irrelevant by the new information was patently deficient to demonstrate reasonable diligence.” (Kott, supra, 45 Cal.App.4th at p. 1138.)
Santopietro's limited efforts stand in stark contrast to those approved by the court in Giorgio v. Synergy Management Group, LLC (2014) 231 Cal.App.4th 241 (Giorgio). There, the defendant successfully challenged the original service of process and claimed he no longer lived or worked in the United States. (Id. at pp. 243-244.) The plaintiff performed a search online and was able to locate an address associated with the defendant in Los Angeles; the plaintiff also confirmed the address with a European bailiff firm. (Id. at p. 244.) The summons sent to that address was returned unclaimed, but the post office verified that the defendant continued to receive mail there and there was no change of address on file. (Id. at pp. 244-245.) The plaintiff also hired two process servers and unsuccessfully attempted personal service six times at the newly located address, as well as at addresses of the defendant's family members. (Id. at pp. 244-245, 247-248.) The plaintiff's application for service by publication was supported not only by the declaration of counsel and the process server, but also by other evidence tending to show that the defendant lived at the Los Angeles address, including the written responses from the post office and the bailiff firm. (Id.at pp. 245 & fn. 5, 249.) On appeal, the court affirmed the trial court's finding that the defendant “could not with reasonable diligence be served personally or by mail.” (Id. at p. 248.) Santopietro's efforts at service at a single address for Harden, coupled with minimal evidence that Harden continued to reside there, did not make this showing.
Both Santopietro and the trial court relied on Cradduck, supra, 242 Cal.App.2d 850, to conclude that the hearsay statements in the process server's declaration were admissible to establish reasonable diligence. We find Cradduck inapposite, because it did not involve a motion to quash service of process. In considering the validity of hearsay evidence, the court in Cradduck expressly distinguished between the case before it, which involved a collateral attack on the judgment, and cases involving a direct attack on a judgment. (Id. at p. 854-855.) The court concluded that it could consider hearsay evidence under the circumstances, reasoning that “[o]ne of the rules governing collateral attack is that hearsay in the affidavit for publication of summons may be considered and supports the judgment thereafter made.” (Id. at p. 855-856. Accordingly, the court held that “the fact that the allegations of the affidavit were hearsay did not in these collateral proceedings vitiate the default judgment ipso facto.” (Ibid.)
On a defendant's direct challenge to an order for publication, on the other hand, “[t]he declaration on which an order for the publication of summons is based must state probative facts of the declarant's own knowledge rather than hearsay information or merely legal conclusions. It has no probative value if it is hearsay as to the declarant and based on unsworn information. [¶] Declarations devoid of averment of facts personally known to the declarant to be true, that due diligence was exercised to effect personal service, ‘have consistently been held to be insufficient, and orders for service by publications based on [such declarations] have uniformly been held to have been beyond jurisdiction and void.'” (Sanford v. Smith (1970) 11 Cal.App.3d 991, 998-999; see also Miller v. Superior Court (1961) 195 Cal.App.2d 779, 783-784; accord Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42; Rios v. Singh (2021) 65 Cal.App.5th 871.)
Crucially, Santopietro relied on hearsay statements to establish one of the key facts in his application-that Harden continued to reside at the McKinney Street address. Santopietro argues that the statements by the building manager and concierge were admissible for a nonhearsay purpose under Evidence Code section 1241, to explain why Garza continued to attempt to serve Harden at the same address. However, at the time Santopietro applied for service by publication, Harden had already submitted a declaration stating that he no longer lived at that address. Without evidence that Harden was still living at the McKinney Street address, the only address where service was attempted, Santopietro cannot establish that he acted with reasonable diligence prior to seeking service by publication.
Evidence Code section 1241 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and [¶] (b) Was made while the declarant was engaged in such conduct.”
Thus, the trial court's finding that Santopietro exercised reasonable diligence was not supported by substantial evidence and the court erred in denying Harden's motion to quash service.
In light of our conclusion, we need not reach Harden's additional procedural challenges to Santopietro's service by publication.
III. Attorney Fees
In his petition, Harden sought the award of costs pursuant to California Rules of Court, rule 8.493(a) as the prevailing party in this writ proceeding. In his reply brief, Harden argued that he is entitled to his costs, “plus attorney fees incurred.” He also suggested, without citation to authority, that “[s]anctions may be appropriate” because Santopietro prolonged these proceedings by purporting to oppose the trial court's compliance with our alternative writ, while failing to provide any substantive basis for that opposition. Santopietro opposes Harden's request for attorney fees, arguing (also without supporting citations) that Harden “failed to meet the standards” for such an award.
All further rule references are to the California Rules of Court unless otherwise indicated.
We deny Harden's request for attorney fees. Harden is entitled to his costs in this proceeding. (See rule 8.493(a).) However, attorney fees are not included in the list of recoverable costs and Harden provides no other basis for their award. (See rules 8.493(b), 8.278(d) [recoverable costs].) Moreover, we do not consider Harden's passing reference to sanctions as a motion for sanctions required under rule 8.492(a), nor has he sufficiently shown a justification for an award of attorney fees as a sanction against Santopietro. (See ibid. [sanctions may be awarded for: “(1) Filing a frivolous petition or filing a petition solely to cause delay; or (2) Committing any other unreasonable violation of these rules”].)
DISPOSITION
The petition for writ of mandate is granted and the requested writ hereby issues. The respondent court is directed to vacate its order of April 6, 2021, denying Harden's motion to quash service of the summons, and enter a new and different order granting the motion. Harden is awarded his costs in this proceeding.
We concur: MANELLA, P. J., WILLHITE, J.