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FILED
San Francisco County Superior Court
DEC 28 2019
CLERK OF THE COURT
ne
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA.
COUNTY OF SAN FRANCISCO
DEPARTMENT OF THE PRESIDING JUDGE
‘WELLS FARGO BANK, N.A., )
) Case No. CGC-19-574399
Plaintiff, )
¥ ) MINUTE ORDER DENYING WITHOUT
) PREJUDICE PLAINTIFF’S EX PARTE
ELINA M BACKALLY LEVY, } APPLICATION FOR ORDER BY
Defendant. PUBLICATION
)
)
)
Plaintiff's application to serve Defendant, ELINA M BACKALLY LEVY, by oublcton
pursuant to Code of Civil Procedure section 415.50 is hereby DENIED WITHOUT PREJUDICE
for the following reasons:
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR
PUBLICATION OF SUMMONS - 1Compliance with California Code of Civil Procedure Section 415.50(a)
Plaintiff failed to demonstrate that a cause of action exists against Defendant. (Code Civ.
Proc., § 415.50, subd. (a)(1).) The affidavit supporting Plaintiff's current application must
include allegations, based on personal knowledge of the underlying facts, that a cause of action
exists against this defendant or that he is a necessary party to this action. (Harris v. Cavasso
(1977) 68 Cal.App.3d 723, 725-26 [holding section 415.50 “requires that the affidavit
demonstrate to the satisfaction of the court that a cause of action exists” against the defendant].)
Here, Lance D Becker’s August 22, 2019 affidavit fails to demonstrate a cause of action
against Defendant. Mr. Becker’s affidavit claims Defendant incurred a balance on his account
but neither specifies the balance amount, articulates whether the balance was unpaid, nor
mentions that it was overdue for payment. Without declaring such information, Plaintiff has not
established that a cause of action for breach of contract exists against Defendant.
Whereabouts of Defendant are Known
Service by publication is not adequate notice for due process purposes for a defendant
whose whereabouts are known, and who, therefore, could be notified by means such as personal
service or mail. (Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 795.) Ifthe
defendant's address is ascertainable, and there is any possibility the defendant may still be living
at that address, the plaintiff must attempt to serve the defendant by mail at that address.
On September 19, 2019, Plaintiff alleged that Defendant had previously requested a cease|
and desist from all communications verbally. Accordingly, under the Fair Debt Collection
Practices Act (15 U.S.C. § 1692 et seq.), if notified in writing, a debt collector must cease
communication with the consumer regarding further communication with respect to the debt.
Even if Plaintiff received written notice to cease communication, Plaintiff is exempt from|
the Fair Debt Collection Practices Act for service of process. (15 U.S.C. § 1692a subd. (6), par.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR
PUBLICATION OF SUMMONS - 2(D).) Pursuant to section 1692 subdivision (a) paragraph (6) sub-paragraph (D), the term “debt
collector” does not apply to “any person while serving or attempting to serve legal process on
any other person in connection with the judicial enforcement of any debt.” (Ud) Accordingly,
service by publication is not appropriate because Defendant’s whereabouts are known, and
Plaintiff is not precluded from effectuating service by mail under the Fair Debt Collection
Practices Act. (15 U.S.C. § 1692 et seq.)
Reasonable Diligence
Plaintiff failed to demonstrate reasonable diligence to locate Defendant. Before allowing
a plaintiff to resort to service by publication, the courts require him or her to show reasonable
diligence to locate the defendant. (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.)
_ “Reasonable diligence” denotes “a thorough, systematic investigation and inquiry
conducted in good faith by the party or his agent or attorney.” (Watts v. Crawford (1995) 10
Cal.4th 743, 749, fn. 5.) An affidavit or declaration should show that plaintiff took “those steps
reasonable person who truly desired to give notice would have taken under the circumstances.”
(Donel, Inc., supra, 87 Cal_App.3d at p. 333.) The affidavit must establish reasonable diligence
by “‘probative facts’ based on personal knowledge.” (Olvera vy. Olvera (1991) 232 Cal.App.3d
32, 42.)
Reasonable diligence also requires a number of honest attempts to learn of a defendant’s
whereabouts or his or her address by: (1) inquiring of friends or relatives; (2) investigating
appropriate city and telephone directories; and (3) searching assessor’s office property indices
situated near the defendant’s last known address. (Watts, supra, 10 Cal.4th at p. 749, fn. 5.)
Additionally, in this age of technology, a reasonable person who truly desired to give notice to a
defendant will always attempt a comprehensive internet search for the defendant’s whereabouts.
(See Donel, Inc., supra, 87 Cal.App.3d at p. 333.) .
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR
PUBLICATION OF SUMMONS - 3Here, Bianca Gutierrez’s September 19, 2019 declaration asserts that there are no known
friends or relatives of Defendant but does not mention how she arrived at this conclusion. It is
insufficient to simply declare that no friends or relatives of Defendant are known without
providing evidence of a diligent attempt to ascertain their existence and identities.
Plaintiff may resubmit the application and courtesy copies to Department 206. Plaintiff
must provide two copies of the proposed order. Plaintiff may provide a self-addressed stamped
envelope if certificate/copies are to be returned via mail.
DATED: TJocember (%, LO!"
= Tt Garrett L. Wong
Presiding Judge
San Francisco Superior Court
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR
. PUBLICATION OF SUMMONS - 4SUPERIOR COURT OF CALIFORNIA
County of San Francisco
WELLS FARGO BANK, N.A.
Case Number: CGC-19-574399
Plaintiff(s) :
vs. y
CERTIFICATE OF MAILING
ELINA M. BACKALLY LEVY, et al. (CCP 1013a (4) )
Defendant(s)
I, Jhulie I. Roque, a Deputy Clerk of the Superior Court of the County of San Francisco,
- certify that I am not a party to the within action.
On December 23, 2019, I served the attached MINUTE ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S EX PARTE APPLICATION FOR ORDER BY PUBLICATION by
_ placing a copy thereof in a sealed envelope, addressed as follows:
TRISTAN P. ESPINOSA, ESQ.
REESE LAW GROUP, APLC
3168 LIONSHEAD AVE.
CARLSBAD, CA 92010
and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, ~
CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and
mailing on that date following standard court practices.
Dated: December 23, 2019
CLERK OF THE COURT, T. MICHAEL YUEN
I= f\
Thule I Roauf, Deputy Clerk
Preview
FILED San Francisco County Superior Court DEC 28 2019 CLERK OF THE COURT ne Deputy Clerk SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN FRANCISCO DEPARTMENT OF THE PRESIDING JUDGE ‘WELLS FARGO BANK, N.A., ) ) Case No. CGC-19-574399 Plaintiff, ) ¥ ) MINUTE ORDER DENYING WITHOUT ) PREJUDICE PLAINTIFF’S EX PARTE ELINA M BACKALLY LEVY, } APPLICATION FOR ORDER BY Defendant. PUBLICATION ) ) ) Plaintiff's application to serve Defendant, ELINA M BACKALLY LEVY, by oublcton pursuant to Code of Civil Procedure section 415.50 is hereby DENIED WITHOUT PREJUDICE for the following reasons: ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR PUBLICATION OF SUMMONS - 1Compliance with California Code of Civil Procedure Section 415.50(a) Plaintiff failed to demonstrate that a cause of action exists against Defendant. (Code Civ. Proc., § 415.50, subd. (a)(1).) The affidavit supporting Plaintiff's current application must include allegations, based on personal knowledge of the underlying facts, that a cause of action exists against this defendant or that he is a necessary party to this action. (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 725-26 [holding section 415.50 “requires that the affidavit demonstrate to the satisfaction of the court that a cause of action exists” against the defendant].) Here, Lance D Becker’s August 22, 2019 affidavit fails to demonstrate a cause of action against Defendant. Mr. Becker’s affidavit claims Defendant incurred a balance on his account but neither specifies the balance amount, articulates whether the balance was unpaid, nor mentions that it was overdue for payment. Without declaring such information, Plaintiff has not established that a cause of action for breach of contract exists against Defendant. Whereabouts of Defendant are Known Service by publication is not adequate notice for due process purposes for a defendant whose whereabouts are known, and who, therefore, could be notified by means such as personal service or mail. (Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 795.) Ifthe defendant's address is ascertainable, and there is any possibility the defendant may still be living at that address, the plaintiff must attempt to serve the defendant by mail at that address. On September 19, 2019, Plaintiff alleged that Defendant had previously requested a cease| and desist from all communications verbally. Accordingly, under the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.), if notified in writing, a debt collector must cease communication with the consumer regarding further communication with respect to the debt. Even if Plaintiff received written notice to cease communication, Plaintiff is exempt from| the Fair Debt Collection Practices Act for service of process. (15 U.S.C. § 1692a subd. (6), par. ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR PUBLICATION OF SUMMONS - 2(D).) Pursuant to section 1692 subdivision (a) paragraph (6) sub-paragraph (D), the term “debt collector” does not apply to “any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” (Ud) Accordingly, service by publication is not appropriate because Defendant’s whereabouts are known, and Plaintiff is not precluded from effectuating service by mail under the Fair Debt Collection Practices Act. (15 U.S.C. § 1692 et seq.) Reasonable Diligence Plaintiff failed to demonstrate reasonable diligence to locate Defendant. Before allowing a plaintiff to resort to service by publication, the courts require him or her to show reasonable diligence to locate the defendant. (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.) _ “Reasonable diligence” denotes “a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.” (Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.) An affidavit or declaration should show that plaintiff took “those steps reasonable person who truly desired to give notice would have taken under the circumstances.” (Donel, Inc., supra, 87 Cal_App.3d at p. 333.) The affidavit must establish reasonable diligence by “‘probative facts’ based on personal knowledge.” (Olvera vy. Olvera (1991) 232 Cal.App.3d 32, 42.) Reasonable diligence also requires a number of honest attempts to learn of a defendant’s whereabouts or his or her address by: (1) inquiring of friends or relatives; (2) investigating appropriate city and telephone directories; and (3) searching assessor’s office property indices situated near the defendant’s last known address. (Watts, supra, 10 Cal.4th at p. 749, fn. 5.) Additionally, in this age of technology, a reasonable person who truly desired to give notice to a defendant will always attempt a comprehensive internet search for the defendant’s whereabouts. (See Donel, Inc., supra, 87 Cal.App.3d at p. 333.) . ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR PUBLICATION OF SUMMONS - 3Here, Bianca Gutierrez’s September 19, 2019 declaration asserts that there are no known friends or relatives of Defendant but does not mention how she arrived at this conclusion. It is insufficient to simply declare that no friends or relatives of Defendant are known without providing evidence of a diligent attempt to ascertain their existence and identities. Plaintiff may resubmit the application and courtesy copies to Department 206. Plaintiff must provide two copies of the proposed order. Plaintiff may provide a self-addressed stamped envelope if certificate/copies are to be returned via mail. DATED: TJocember (%, LO!" = Tt Garrett L. Wong Presiding Judge San Francisco Superior Court ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S APPLICATION FOR . PUBLICATION OF SUMMONS - 4SUPERIOR COURT OF CALIFORNIA County of San Francisco WELLS FARGO BANK, N.A. Case Number: CGC-19-574399 Plaintiff(s) : vs. y CERTIFICATE OF MAILING ELINA M. BACKALLY LEVY, et al. (CCP 1013a (4) ) Defendant(s) I, Jhulie I. Roque, a Deputy Clerk of the Superior Court of the County of San Francisco, - certify that I am not a party to the within action. On December 23, 2019, I served the attached MINUTE ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S EX PARTE APPLICATION FOR ORDER BY PUBLICATION by _ placing a copy thereof in a sealed envelope, addressed as follows: TRISTAN P. ESPINOSA, ESQ. REESE LAW GROUP, APLC 3168 LIONSHEAD AVE. CARLSBAD, CA 92010 and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, ~ CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices. Dated: December 23, 2019 CLERK OF THE COURT, T. MICHAEL YUEN I= f\ Thule I Roauf, Deputy Clerk