Rojas, Jesusita vs. Sciacca, Leonard Michael et al

The private investigator met with the resident director who indicated Defendant was no longer resident. (Declaration of Russell P.20.)

Thereafter, the private investigator obtained additional addresses linked to the name Mathew Esparza, including 495 South Park Street in Woodlake, 1603 East Cooper Avenue in Visalia, and 2530 Oak Road in Walnut Creek. (Declaration of Russell P.20.)

Attempts to serve Defendant at these locations were likewise unsuccessful and counsel notes the Woodlake and Visalia addresses are linked to Defendant's parents. (Declaration of Russell P.20.)

A further search of the Walnut Creek address revealed information to rule out this address as a possible address for service. (Declaration of Russell P.22.)

Last, counsel reached out to Defendant's prior counsel who indicated that Defendant may be incarcerated; however, counsel has searched the inmate records and cannot locate Defendant. (Declaration of Russell P.23.)

Authority and Analysis

Section 415.50, subdivision (a), states: "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."

The requirements of section 415.50 are strictly construed. (County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443; 450.)

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.)

If a defendant's address is ascertainable, a method of service superior to publication must be employed. (Id.)

The means of service described in Code of Civil Procedure sections 415.10-415.40 make service by publication unnecessary except where a defendant's whereabout and his dwelling house or usual place of abode cannot be ascertained with reasonable diligence. (Id.)

The request for service by publication must be supported by a declaration or declarations by persons with personal knowledge. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42.)

The declaration must show the defendant cannot with reasonable diligence be served in another authorized manner, requiring a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. (Watts, supra, 10 Cal.4th at p. 749, fn. 5.)

"[T]he showing of diligence in any given case must rest on its own facts" (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1138.)

"In each case where the question here presented is under review the particular facts will control. No single formula nor mode of search can be said to constitute due diligence in every case, [P.] '[l]n proceeding to avail himself ... for constructive service of summons, a plaintiff must, in fact, have exercised due diligence. A mere formal compliance with the provisions of the statute, or a statement to that effect in his affidavit, will not suffice; nor will an order for publication based upon such an affidavit, or a judgment following a service of publication thereon, be conclusive of the fact that such diligence was exercised.' [Citation.]" (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.)

"The question is simply whether" appellant "took those steps which a reasonable person who truly desired to give notice would have taken under the circumstances." (Id.)

The Court finds Plaintiff has demonstrated diligence in investigation and inquiry to located Defendant, as to the attempts at addresses associated with Defendant, various records searches and the hiring of a private investigator.

Defendant's address does not appear to be ascertainable despite this reasonable diligence.

Next, section 415.50 requires the supporting declaration set forth facts establishing not only the required reasonable diligence but also that 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.

"For the purpose of service by publication, the existence of a cause of action is a jurisdictional fact." (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726.)

The Harris court concluded a default judgment must be set aside because "the affidavit filed by plaintiffs' attorney [in support of the publication request] is devoid of any facts from which the trial court could draw the conclusion that a cause of action existed against defendants." (Id.)

Here, Plaintiff provides excerpts from the preliminary hearing transcript indicating Defendant Esparza was standing near the decedent at the time decedent was shot. (Declaration of Russell P.P.2, 24.)

Finally, the application and supporting declaration(s) must present facts regarding the selected publication showing it is "most likely to give actual notice to the party to be served." (Code Civ. Proc., Sec. 415.50, subd. (b).)

Here, Plaintiff proposes publication via the Sun Gazette, a newspaper of general circulation for Tulare County.

Because of the Defendant's link to Fresno County regarding the Salvation Army address, the Court will also require publication in the Fresno Bee.

Therefore, the Court grants the motion and will order publication in both the Sun Gazette and Fresno Bee.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary.

The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division.

The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Gonzalez, Adan Chavez vs. DOES 1-10