Irvine Four, LLC vs. Park Place associatesMotion to Quash Service of SummonsCal. Super. - 4th Dist.October 23, 201410 11 12] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey W. Shields, Bar No. 109920 Rick A. Varner, Bar No. 160403 M. Adam Tate, Bar No. 280017 SHIELDS LAW OFFICES 1920 Main Street, Suite 1080 Irvine, California 92614 (949) 724-7900; Fax (949) 724-7905 E-mail: jeff@shieldslawoffices.com Attorneys For Specially Appearing Defendants Tahamtan H. Aresh And Gordafrid T. Aresh SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE IRVINE FOUR, LLC, a Delaware limited liability company, Plaintiff, vs. PARK PLACE ASSOCIATES, a California partnership, et al., Defendants. Case No. 30-2014-00752609-CU -CO-CJdC ASSIGNED FOR ALL PURPOSES TO: JUDGE WALTER SCHWARM DEPARTMENT C19 NOTICE OF MOTION AND MOTION OF SPECIALLY APPEARING DEFENDANTS TAHAMTAN H. ARESH AND GORDAFRID T. ARESH TO QUASH SERVICE OF SUMMONS [Memorandum of Points and Authorities Attached Hereto; Request For Judicial Notice Submitted Concurrently Herewith] Date: August 9, 2016 Time: 1:30 p.m. Dept. : C19 Date Filed: October 23, 2014 Trial Date: July 29, 2016 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECCRD HEREIN: PLEASE TAKE NOTICE that, or as soon thereafter as this matter may be heard, 26149 on August 9, 2016, at 1:30 p.m., in Department MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C19 of the Orange County Superior Court, Central Justice Center, located at 700 West Civic Center Drive, Santa Ana, California 92702-1994, specially appearing defendants TAHAMTAN H. ARESH (“Mr. Aresh”) and GORDAFRID T. ARESH (“Mrs. Aresh”) [hereinafter, Mr. Aresh and Mrs. Aresh are sometimes collectively referred to as “Moving Defendants”] will specially appear herein solely in order to move the Court pursuant to Code of Civil Procedure section 418.10 for an order quashing service of summons purportedly made by publication herein by plaintiff IRVINE FOUR, LLC (“Plaintiff”) on Moving Defendants. This Motion is made on the grounds that (1) Plaintiff’s attempt to effect service by publication on Moving Defendants does not comport with the mandatory requirements of the “Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters” and is therefore void, and (2) Plaintiff’s purported service by publication is additionally invalid because it further failed to comply with the requirements of California law for proper service by publication. This Motion will be based upon this Notice, the Memorandum of Points and Authorities attached hereto, Moving Defendants’ “Request for Judicial Notice in Support of Motion to Quash Service of Summons” (the “Request for Judicial Notice”) submitted concurrently herewith, the pleadings, records and other documents on file in this action, and such additional argument and // // / 7 / 7 2 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence, oral or written, as may be presented at or in conjunction with the hearing on this Motion. DATED: June ¥, 2016 SHIELDS LAW OFFICES ne By ade ’ Jeffrey W. Shields -~"" M., Adam Tate Attorneys for Specially Appearing Defendants Tahamtan H. Aresh and Gordafrid T. Aresh 3 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 le 17 18 19 2.0 21 22 23 24 25 26 27 28 I. IT. ITI. IV. TABLE OF CONTENTS PRELIMINARY STATEMENT... iii teeter ete eenonncanennnns 1 STATEMENT OF FACTS. tit tet oneonensssoeetnenncannnsns 1 ARGUMENT © ovis ett s ttt t ecto eeronnnanees chee eee 4 A. The Court Has The Power To Quash Plaintiff’s Purported Service Of Summons By Publication..... 4 B. Plaintiff’s Purported Service Should Be Quashed Because It Fails To Comply With The Mandatory Requirements Of The Hague Service Convention.... 5 1. Compliance With The Hague Service Convention Is Mandatory... titi nennennnnnn 5 2. Plaintiff’s Purported Service By Publication Did Not Comply With The Hague Service Convention. ....couiniieninnnnannnnan 8 C. Plaintiff’s Purported Service Should Also Be Quashed Because It Fails To Comply With California Taw. .....ceueiiineiiineeeercinnnnnnn 11 1. California Law Prohibits Service By Means Of Publication Where A Defendant’s Address Is Known, Except As A Last Resort.......... 11 2. Plaintiff Has Not Exercised Reasonable Diligence As Required By Code Of Civil Procedure Section 415.50.........0ciunun.n. 12 O 15 10 11 12] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page (s) American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 131 Cal.Rptr.3d 99......... 14 Balcom v. Hiller (1966) 46 Cal.App.4th 1758, 54 Cal.Rptr.2d 536.......... 6 Buchananv. Soto (2015) 241 Cal.App.4th 1353, 194 Cal.Rptr.3d 663...... 8,9 Dahya v. Second Judicial Dist. Court Ex Rel. County Washoe (Nevada 2001) 17 Nev. 208, 117 Nev. 208... tren eeennnn..1 Dr. Ing H.C.F. Porsche A.G., v. Superior Court (1981) 123 Cal.App.3d 755, 177 Cal.Rptr. 155............ 6 Espindola wv. Nunez (1988) 199 Cal.App.3d 1389, 245 Cal.Rptr. 59%96.......... 13 Honda Motor Co., Ltd. v. Superior Court (1992) 10 Cal.App.4th 1043, 12 Cal.Rptr.2d 861.... 5,6,7,8 Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 53 Cal. Rptr.2d 215... iii iit i ii iiinoannan 6,7,8,13,14 Lebel wv. Mai (2012) 210 Cal.App.4th 1154, 148 Cal.Rptr.3d 892...... 7,9 Merial Ltd. v. Cipla Ltd. (Fed. Cir. 2012) 681 F.3d 1283... citi ierecnneonnanannn 6 Mix v. Yoakum (1934) 138 Cal.App. 290, 31 P.2d 1071... cviiniinninnnn.. 5 Mullane v. Central Hangover Bank & Trust Co. (1950) 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865........ 12 People v. Mendocino County Assessor’s Parcel No. 056-500-009 (1997) 58 Cal.App.4th 120, 68 Cal.Rptr.2d 51........ 6,8,9 Suzuki Motor Co., Ltd. v. Superior Court (1988) 200 Cal.App.3d 1476, 249 Cal.Rptr. 376........... 6 Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 40 Cal.Rptr.2d 61l4.......... 11 ii 10 11 12 13 14 15 16 17 18 19] 20 21 22 23 24 25 26 27 28 Velasco v. Ayala (Texas App. 2009) 312 S.W.3d 783... iii ineernnnenenns 8 Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d. 722... 7 Walker v. City Of Hutchinson (1956) 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178....... 12 Watts wv. Crawford (1995) 10 Cal.4th 743, 42 Cal.Rptr.2d 8l.....c.cvv... 11,13 Statutes Page(s) California Code of Civil Procedure § 413.10............ 7,13 California Code of Civil Procedure § 418.10......c00vou... 4 California Code of Civil Procedure § 415.50........... 11,12 Other Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil or Commercial 1,7,9,10 iid 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. PRELIMINARY STATEMENT The Motion should be granted because Plaintiff’s purported service of summons by publication on Moving Defendants is defective. Indeed, as detailed below, the purported service by publication was improper and is void under the mandatory provisions of the “Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters” (the “Hague Service Convention”), which governs any service on Moving Defendants in India.l Moreover, as also set forth below, Plaintiff's purported service by publication is additionally invalid because it further failed to comply with the requirements of California law for proper service by publication. For all of these reasons, Plaintiff’s purported service by publication on Moving Defendants is void and inadequate, and this Motion to quash should be granted. IT. STATEMENT OF FACTS This is not the first time that Moving Defendants have been compelled to file a motion to quash because of defective service. On June 23, 2015, this Court granted Moving Defendants’ previous motion to quash a summons allegedly served on Moving Defendants in Newport Beach, California, because they do not reside there. 1 A true and correct copy of the Hague Service Convention, together with India’s “Declarations Reservations” appended thereto, is attached to the Request for Judicial Notice as Exhibit “1” thereto and is incorporated herein by this reference. 26149 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In conjunction with that previous motion to quash, Moving Defendants each submitted Declarations to this Court on June 15, 2015, which stated, inter alia, that (a) Moving Defendants had not lived in Newport Beach since December 2010 (Declarations, 9's 2); (b) Moving Defendants became residents of Texas in 2010 (Declarations, I's 3); and (c) subsequently, Moving Defendants’ primary residence became located in India at: 2°, Flr Queens Chambers, 89, Maharshi Karve Road, Mumbai, India 400020 [the “India Address”] (Declarations, 1's 3-4).2 Subsequently, it appears that Plaintiff made only one attempt toc serve Moving Defendants at the India Address, as reflected in Plaintiff’s “Application For Order For Publication Of Summons; etc.” (“Plaintiff’s Application”), filed with this Court on March 3, 2016, and which included the “Declaration of Frank A. Conner” (the “Conner Dec.”) in support thereof .3 Among other things, the Conner Dec. stated that: (a) Plaintiff had been made aware of Moving Defendants’ India Address in a written discovery response from Moving Defendants’ son, Rohinton T. Aresh, dated March 4, 2015 (Conner Dec., 1 7):% (b) Plaintiff retained an entity named “Crowe Foreign Services” to serve Moving Defendants in India (Conner Dec., I 9); (cc) in 2 A true and correct copy of both of such Declarations is attached to the Request for Judicial Notice as Exhibit “27” thereto and 1s incorporated herein by this reference. 3 A true and correct copy of the cover sheet of Plaintiff’s Application filed on March 3, 2016, with the Conner Dec. (sans Exhibits), is attached to the Request for Judicial Notice as Exhibit “3” thereto and is incorporated herein by this reference. 4 A true and correct copy of such written discovery response, which is Exhibit E to the Conner Dec., is attached to the Request for Judicial Notice as Exhibit “4” thereto and is incorporated herein by this reference. 2 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 December 2015, Plaintiff received notice that the attempt had been unsuccessful, supposedly because Moving Defendants allegedly “live in the United States” (Conner Dec., 1 10); and (d) Plaintiff apparently did nothing else thereafter to try to serve Moving Defendants, either at the India Address or in Texas. Significantly, attached to Plaintiff’s Application and the Conner Dec. as Exhibit F (relative to Mr. Aresh)® and Exhibit G (relative to Mrs. Aresh)® are copies of the documents which Plaintiff indicates it received from India’s Central Authority. Significantly, each set of documents includes a handwritten “Bailiff’s Report” with identical language dated August 21, 2015 (the “Bailiff’s Report”), which states as follows: “UNSERVED for DEFENDANT (subject party) I went to serve copy of the summons with Legal Document on the Defendant (subject party) at his address at Queens Chambers, ond floor, 89, Maharshi Karve Road, Mumbai 400020 on 21°" Aug 2015 in between 10/30 AM to 10/45 AM, but the said Defendant (subject party ) was not found and premises was found locked so on my inquiries with neighbours Mr. S.E. Major and also sut [sic] Tannaz Dasfoor, I was informed that the said Defendant (subject party) is residing at America and he has attend the above said premises once in a year. Hence I came back.” 3 A true and correct copy of such documents relative to Mr. Aresh, which is Exhibit F to the Conner Dec., is attached to the Request for Judicial Notice as Exhibit “5” thereto and is incorporated herein by this reference. 6 A true and correct copy of such documents relative to Mrs. Aresh, which is Exhibit G to the Conner Dec., is attached to the Request for Judicial Notice as Exhibit “6” thereto and is incorporated herein by this reference. 3 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Bailiff’s Report is notable because (a) it confirms that Moving Defendants were not served, (b) it confirms that the India Address is correct although another address for Moving Defendants apparently exists in the United States, and (c) it confirms that only one, single attempt to serve Moving Defendants was made at the India Address. Critically, Plaintiff has provided no evidence: (1) that Plaintiff ever attempted to serve Moving Defendants at the India Address more than just the one time referenced in the Bailiff’s Report, (2) that Plaintiff ever made a follow up request of any kind to the India Central Authority, (3) that Plaintiff ever undertook any other kind of reasonable diligence to serve Moving Defendants in India, including without limitation, communicating with anyone in India or undertaking any investigation or research, (4) that Plaintiff ever undertook any separate investigation or research whatsoever to try to locate Moving Defendants’ alternate address in Texas, and/or (5) that Plaintiff ever made any attempt to serve Moving Defendants in Texas. On May 20, 2016, Plaintiff filed a proof of service with this Court alleging tc have served Moving Defendants through publication of summons in the Orange County Register. ITT. ARGUMENT A. The Court Has The Power To Quash Plaintiff’s Purported Service Of Summons By Publication. The Court has the power to quash the service of summons purportedly made on Moving Defendants. In this regard, Code of Civil Procedure section 418.10(a) states in relevant part: 4 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 206 27 28 “A defendant, on or before the last day of his or her time to plead. . . may serve and file a notice of motion for one of more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” | Significantly, this power to quash includes a motion to quash based on failure to effect proper service of process since, in California, purported service of process which fails to conform to statutory requirements does not confer jurisdiction, and all that follows thereafter is void. Honda Motor Co., Ltd. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048, 12 Cal.Rptr.2d 861. Additionally, and with specific reference to an improper attempt to serve by publication, the court in Mix v. Yoakum (1934) 138 Cal.App. 290, 293, 31 P.2d 1071, stated: “When an order directing service of summons by publication is inadvertently or improperly made, the court may quash the service of summons had under such order.” B. Plaintiff’s Purported Service Should Be Quashed ‘Because It Fails To Comply With The Mandatory Requirements Of The Hague Service Convention. As detailed below, Plaintiff’s purported service by publication fails to comply with the mandatory requirements of the Hague Service Convention, and should therefore be quashed. 1. Compliance With The Hague Service Convention Is Mandatory. It is well established that service of process on a foreign entity located outside the United States in a country which is a signatory to the Hague Service Convention must conform to the 5 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provisions of the Hague Service Convention. Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1133, 53 Cal.Rtpr.2d 215 [reaffirming U.S. Supreme Court’s holding that, by virtue of the Supremacy Clause of the U.S. Constitution, “the Convention preempts inconsistent methods of service prescribed by state law in all cases to which it applies” (emphasis added) 1.” Importantly, the failure of a party to comply with the requirements of the Convention voids and invalidates any purported service. Kott v. Superior Court, supra, at 1136: “Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law.” [Emphasis added.] Accord: Honda Motor Co., supra, at 1048-1049; Suzuki Motor Co., Ltd. v. Superior Court (1988) 200 Cal.App.3d 1476, 1484, 249 Cal.Rptr. 376; Dr. Ing H.C.F. Porsche A.G. v. Superior Court (1981) 123 Cal.App.3d 755, 760-762, 177 Cal.Rtpr. 155. Thus, where the Hague Service Convention applies, a party must be served via one of the prescribed methods in the Hague Service Convention, and the failure to do so renders the service void. Balcom v. Hiller (1996) 46 Cal.RApp.4th 1758, 1763-1764, 54 7 The Hague Service Convention is a multilateral treaty that provides procedures for the service of process on defendants living in foreign jurisdictions. People v. Mendocino County Assessor’s Parcel No. 056-500-09 (1997) 58 Cal.App.4th 120, 124, 68 Cal.Rptr.2d 51. India is a signatory to the Hague Service Convention. See, e.g., Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1296 (Fed. Cir. 2012) [“India became a signatory to the Hague Convention, effective August 1, 2007. In so doing, India prohibited service through channels including mail and private process servers and instead required foreign plaintiffs to effect service through the Central Authority of India.”]. 6 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 28 Cal.Rptr.2d 536.8 Indeed, the Hague Service Convention is given preemptive effect over State laws. Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699, 108 S.Ct. 2104, 100 L.Ed.2d 722; Honda Motor Co., supra, at 1049. Moreover, California’s own Code of Civil Procedure section 413.10(c) expressly confirms as to service of summons that: “These rules are subject to the provisions of the Convention on the ‘Service Abroad of Judicial and Extrajudicial Documents’ in Civil or Commercial Matters (Hague Service Convention) ."? Accordingly, California courts routinely quash service of summons which is served in a manner not authorized by the Hague Service Convention, even where the service would have been valid under California law. See, e.qg., Lebel v. Mai (2012) 210 Cal.App.4™ 8 Generally speaking, the Hague Service Convention provides that a party residing in a foreign country may be served in four ways: (1) by sending service through the Central Authority of the receiving country (Article 5); (2) by sending service through diplomatic and consular agents (Articles 8-9); (3) by sending service through mail or through judicial officers (Article 10); or (4) by serving the party in a method permitted by the internal law of the receiving country. (Article 19). See, Dahya v. Second Judicial Dist. Court ex rel. county of Washoe (Nevada 2001) 17 Nev. 208, 212, 117 Nev. 208. Note: In India’s “Declarations Reservations” appended to India’s entry into the Hague Service Convention, India objected to service under Article 10, and limited service through diplomatic and consular channels solely to Indian nationals. See, last page of Exhibit “1” attached to the Request for Judicial Notice. 9 Further, the language of the Hague Service Convention itself is “extremely broad”, Kott v. Superior Court, supra, at 1133, and states in relevant part that: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” [Emphasis added; Article 1.] 7 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1154, 1160, 148 Cal.Rptr.3d 892 [motion to quash was proper where English defendant was improperly served via substituted service]; Honda Motor Co., supra, at 1049 [motion to quash was proper where Japanese company was improperly served via registered mail]. 2. Plaintiff’s Purported Service By Publication Did Not Comply With The Hague Service Convention. Inasmuch as both India and the United States are signatories to the Hague Service Convention, Plaintiff is required to serve Moving Defendants in India via one of the approved methods cf service prescribed by the Hague Service Convention. Moreover, as set forth above, any failure by Plaintiff to follow the Hague Service Convention renders any purported service void. Yet, critically in the within case, service by publication is not an approved method of service under the Hague Service Convention. Thus, Plaintiff’s purported service by publication is not valid and should be quashed. See, e.g., Kott v. Superior Court, supra, at 1139 [where Canadian National was purportedly served via publication, motion to quash was proper]; Velasco v. Ayala (Texas App. 2009) 312 S.W.3d 783, 795 [service by publication on a Mexican resident was invalid]. Notably, although there are some California cases in which the courts authorized service of publication on foreign defendants, those cases are clearly distinguishable from the within situation because the addresses of those defendants were unknown. See, e.g., Buchanan v. Soto (2015) 241 Cal.App.4"™ 1353, 1366, 194 Cal.Rptr.3d 663; People v. Mendocino County, supra, at 124. 8 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Indeed, in both Buchanan and Mendocino the courts held that the Hague Service Convention was not implicated because the addresses of the defendants were unknown.l10 Likewise, the Hague Service Convention itself states that it does not apply where the defendant’s address is unknown (Article 1). Lebel v. Mai, supra, at 1161. Importantly, none of these California cases stands for the proposition that a court can circumvent the Hague Service Convention and authorize service by publication where the defendant’s address is known or can be obtained through reasonable diligence. Of course, in the within case, the India Address of Moving Defendants is clearly known and was actually confirmed in the Bailiff’s Report. Furthermore, it is also clear from the additional language of Article 15 of the Hague Service Convention that Plaintiff’s purported service by publication in this case is invalid. Article 15 states in relevant part: “Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall nct be given until it is established that - a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within 10 Accord: People v. Mendocino County, supra, at 124 ["Appellant's whereabouts continued to remain unknown. The Hague Service Convention was therefore not implicated.”]. 9 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its territory, or b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.” [Emphasis added.] In other words, this Article 15 prohibits any judgment being entered unless and until proof is given that service has been actually effected either by a method prescribed by the Hague Service Convention or by a method prescribed by the internal laws of India -- neither of which has occurred in this case. Moreover, and as one more reason why Plaintiff’s purported service by publication is invalid, Article 15 requires that “delivery must be effected in sufficient time to enable the defendant to defend”. That is certainly not the situation in this case where the Court’s docket indicates that trial in this case is currently scheduled for July 29, 2016, only 38 days after Moving Defendants’ response is due to the purported service by publication. Accordingly, inasmuch as Plaintiff has clearly failed to adhere to the mandatory requirements of the Hague Service Convention by attempting service by publication -- which is not a prescribed method authorized by the Hague Service Convention when a defendant's address is known as is the India Address in this case - then Plaintiff’s purported service by publication is void and should be quashed. 10 MOTION TO QUASH SERVICE OF SUMMONS 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Plaintiff’s Purported Service Should Also Be Quashed Because It Fails To Comply With California Law. In addition to the fact that service on Moving Defendants failed to comply with the Hague Service Convention as set forth above, the Court should also quash the purported service by publication for the additional reason that it was not done in compliance with California law. 1. California Law Prohibits Service By Means Of Publication Where A Defendant’s Address Is Known, Except As A Last Resort. California law is clear that a summons may not be served by publication where the defendant’s address is known, except as a matter of last resort. In Watts v. Crawford (1995) 10 Cal.4th 743, 749, n. 5, 42 Cal.Rptr.2d 81, the California Supreme Court affirmed: “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.” [Emphasis added. 111 Likewise, the Judicial Council comments to California Code of Civil Procedure section 415.50 expressly state that, “[i]f a defendant's address is known before an order is made for publicaticn, service must be effectuated by another method of 11 See, also, Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 744-746, 40 Cal.Rptr.2d 614 [application for publication of summons was defective due to plaintiff’s failure to first attempt service by mail]. 11 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 service specified in this article.” [Emphasis added. ] The Judicial Council comments further confirm that section 415.50 is intended to provide “a method for effecting service upon a defendant whose whereabouts are unknown and who has no known fixed location where service can be otherwise effected in a manner specified in this article.” [Emphasis added. ] Thus, section 415.50 is intended to only be used where the defendant cannot be located - not as a substitute for other service methods merely because they may be slow, costly or cumbersome. 12 Of course, as set forth above, Moving Defendants’ India Address was clearly known by Plaintiff, and was, in fact, was actually utilized and confirmed with regards to the single attempt made to serve Moving Defendants in India. 2. Plaintiff Has Not Exercised Reasonable Diligence As Required By Code Of Civil Procedure Section 415.50. Code of Civil Procedure section 415.50(a) provides that a summens may only be served by publication when “the party to be served cannot with reasonable diligence be served in another manner 12 U.5. Supreme Court precedent is analogous and stands for the proposition that publication does not provide adequate notice for due process purposes when the defendant’s whereabouts are known. See, e.g., Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956) [notification of condemnation proceedings in a local newspaper was an inadequate means of informing a landowner whose name was known to the city and was on the official records]; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 s.Ct. 652, 94 L.Ed. 865 (1950) [published notice of an action to settle the accounts of a common trust fund was not sufficient to inform beneficiaries of the trust whose names and addresses were known]. 12 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 lo 17 18 19 20 21 22 23 24 25 26 27 28 specified in this article”.13 In this instance, Plaintiff has not exercised reasonable diligence, and the purported service by publication should be quashed. The California Supreme Court has explained that the reasonable diligence standard denotes “a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney”. Watts v. Crawford, supra, at 749. Other courts have further explained that a plaintiff's efforts to locate a defendant must be “exhaustive”. Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392-1393, 245 Cal.Rptr. 596. The decision in Kott v. Superior Court, supra, is particularly instructive on what constitutes reasonable diligence. In Kott, although the plaintiff hired a private investigator who called the defendant’s former employer, searched the Los Angeles telephone directory, the records of the DMV, the registrar of voters for Los Angeles County, and the Los Angeles County recorder’s office, without being able to locate the defendant, id. at 1132, the Kott court held that the reasonable diligence standard was not met. The Kott court pcinted out that the plaintiff knew the defendant was a Canadian national, but, despite such knowledge, nade no effort whatsoever to locate an address in Canada. Id. at 1138. As such, plaintiff’s efforts to locate the defendant in Los Angeles were irrelevant. Id.l4 13 Of course, as already cited above, Code of Civil Procedure section 413.10 (c) affirms that, “These rules are subject to the provisions of the Convention on the ‘Service Abroad of Judicial and Extrajudicial Documents’ in Civil or Commercial Matters (Hague Service Convention)”. 14 In describing the reasonable diligence standard, the Kott court articulated a number of steps that the plaintiff should have taken to find the defendant in Canada, stating: 13 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In this case, as set forth above, the Conner Dec. impliedly indicates that, other than making one, single attempt to serve Moving Defendants at the known India Address, Plaintiff apparently did nothing else thereafter to try to serve Moving Defendants -- either at the India Address or in Texas. This can hardly be construed as “reasonable diligence”, much less a “systematic” or “exhaustive” search for Moving Defendants’ whereabouts ~ especially when Plaintiff not only had actual knowledge of the India Address, but also knew that Moving Defendants’ alternate address was in Texas. Yet, no efforts whatsoever were made by Plaintiff to locate Moving Defendants in Texas, nor was there ever any second or follow up attempt to serve Moving Defendants at the India Address. Further, by way of analogy to the method of substituted service, California courts typically require a plaintiff to make at least two or three attempts to personally serve a defendant before allowing the plaintiff to forego personal delivery and, instead, to utilize substituted service. American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389, 131 Cal.Rptr.3d 99 [“Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.’”]. "A number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of 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 are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication.” [Emphasis added. ] Id. at 1137. 14 MOTION TO QUASH SERVICE OF SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 N o w 24 25 26 27 Accordingly, at a minimum, it is reasonable to infer that a plaintiff must make multiple attempts to serve a defendant (whether under the Hague Service Convention or otherwise) before moving to the last resort of service by publication. Here of course, no efforts of any kind were apparently made by plaintiff other than the one, single attempt through the Central Authority of India, including no efforts whatsoever to locate or serve Moving Defendants in Texas. This can hardly be construed as “reasonable diligence” under any meaning of the phrase. IV. CONCLUSION In light of the foregoing, Moving Defendants respectfully request that this Motion be granted and that Plaintiff’s purported service by publication be quashed. DATED: June iH, 2016 Respectfully submitted, SHIELDS LAW OFFICES ~~ feffrey W. Shields Oe? M. Adam Tate Attorneys for Specially Appearing Defendants Tahamtan H. Aresh and Gordafrid T. Aresh ~ 15 MOTION TO QUASH SERVICE OF SUMMONS 10 11; 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) Ss. COUNTY OF ORANGE ) I, the undersigned, say: | am employed in the County of Orange, State of California. | am overthe age of 18 years and am not a party to the within action. My business address is 1920 Main Street, Suite 1080, Irvine, California 92614. On June 21, 2016 | served the foregoing documents described as: NOTICE OF MOTION AND MOTION OF SPECIALLY APPEARING DEFENDANTS TAHAMTAN H. ARESH AND GORDAFRID T. ARESH TO QUASH SERVICE OF SUMMONS on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST VIA FIRST CLASS MAIL | deposited such envelope into the U.S. mail at Irvine, California. | am aware that on motion of a party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one (1) day after the date of deposit for mailing as set forth in this affidavit. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 21, 2016 at Irvine, California. EET M. Adam Tate 25947 10 C11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Irvine Four, LLC, et al. v. Park Place Associates,et al. Case No.: 30-2014-00752609-CU-CO-CJC Frank A. Conner WORDES, WILSHIN & CONNOR, LLP 20151 SW Birch Street, Suite 175 Newport Beach, CA 92660 facibber@wwgc.com Facsimile: (949) 486-5888 Michael A. Lanphere LANPHERE LAW GROUP, P.C. 400 N. Tustin Avenue, Suite 225 Santa Ana, CA 92705 Email MLanphere@llg-law.net Email JBranch@llg-law.net Facsimile: (714) 667-7126
