Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Misael Espinoza,et al. v. Alan Raymond Ewing
Case No: 19CV00334
Hearing Date: Tue Mar 03, 2020 9:30

Nature of Proceedings: Motion for Publication of Summons

HEARING:Motion for order permitting service by publication.

ATTORNEYS: John B. Richards for plaintiff

RULING: The motion is denied, without prejudice to its renewal on a proper evidentiary showing.

Background

This action arises out of an alleged motor vehicle collision on the U.S. 101 freeway in Santa Barbara County on May 24, 2018. Plaintiffs are Misael Espinoza and Luis Espinoza. Defendant is Alan Raymond Ewing.

Plaintiff previously moved for an order authorizing service of defendant by publication. That motion was denied on January 7, 2020, based upon the failure of the motion to (a) include a memorandum of points and (b) the failure to include an affidavit demonstrating to the satisfaction of the Court that a cause of action exists against the party upon whom service is to be made, as required by Code of Civil Procedure section 415.50(a).

Plaintiff has again moved for an order authorizing service of defendant by publication.

ANALYSIS

The motion is denied, based upon its failure to comply with the requirements of Code of Civil Procedure section 415.50(a).

Section 415.50(a) provides:

(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.

The requisites for service by publication must be strictly construed. (Monterey S.P. Partnership v. W.L. Bangham, Inc. (1989) 49 Cal.3d 454, 465.)

The declarations required by the statute must be executed by a person who is a competent witness to the proof of facts required by subdivision (a).

This includes the establishment of the existence of a cause of action or an interest in property, which is a jurisdictional prerequisite to the issuance of an order for publication. (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726.) The court in Harris found that an attorney’s affidavit that was devoid of any facts from which the trial court could draw the conclusion that a cause of action existed against defendants was insufficient. It found that unless the affidavit contained evidence that tended to establish every material fact, including the existence of a cause of action, the trial court acts without jurisdiction if it grants the order for publication, and all proceedings based upon it are void. (Id. at p. 726-727.) Even a verified complaint is insufficient to establish the existence of a cause of action. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42, fn. 9.)

In other words, plaintiff’s attorney can execute the declaration only if he or she has personal knowledge of the facts comprising the cause of action.

The current motion is supported solely by the declaration of plaintiff’s attorney. That declaration contains no facts whatsoever, whether on personal knowledge or otherwise, from which the trial court could conclude that a cause of action existed against defendant. It only references plaintiff’s claims by stating that the complaint includes causes of action for Motor Vehicle and General Negligence. All other statements in the declaration relate to efforts to serve defendant, and identity of the newspaper chosen for publication of the summons, and the reasons it was chosen. The motion contains no declaration, made on personal knowledge, which contains facts comprising a cause of action against defendant, and therefore fails to meet the requirements of Section 415.50(a).

Further, the motion and counsel’s declaration references an investigator’s declaration of due diligence, and a United Process Servers’ diligence report, purportedly attached as Exhibits 1 and 2, respectively. However the motion in the Court file does not include any exhibits at all.

These defects require the Court to deny the motion once again, without prejudice to its renewal on a proper evidentiary showing.