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  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
  • Jose Sanchez vs  Ba Vang22 Unlimited - Auto document preview
						
                                

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ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Jeffiey D. Bohn, (SBN: 243870) 2445 Capitol Street, Suite 105 Fresno, CA 93721 Telephone: (559) 485-1212 Facs1mile: (559) 485-12 1 0 E-FILED 2/13/2019 2:55 PM Attorneys for Plaintiffs FRESNO COUNTY SUPERIOR COURT By: J. Nelson, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO IO ll JOSE SANCHEZ, et al., Case No.1 18CECGO4143 l2 Plaintiffs, MEMORANDUM 0F POINTS AND l3 vs. AUTHORITIES IN SUPPORT OF MOTION TO RECOVER COSTS OF 14 BA VANG, et a1., SUBSTITUTE SERVICE ON ROBERT Vvvvvvvvvvvvv PETHER 15 Defendants. 16 Date: May 1, 2019 Time: 3:30 p.m. l7 Dept.: 403 18 Hon. Rosemary McGuire l9 I. INTRODUCTION 20 Plaintiffproperly served Defendant Robert Pether by mail and acknowledgment of 21 receipt. He refused to acknowledge receipt of service. So, Plaintiffhad to serve him by another 22 method, incurring the costs of hin'ng a registered process server. 23 Accordingly, Mr. Robert Pether is liable for the costs of service incurred afier his refusal 24 to acknowledge service by mail. 25 II. PROCEDURAL AND FACTUAL BACKGROUND 26 On November 8, 201 8, Plaintiffbrought this action against Defendant for personal 27 injuty damages sustained in a motor vehicle collision. (Bohn Decl., 1] 2.) 28 1 Memorandum of Points and Authorities in Support of Motion to Recover Costs of Personal Service On November 8, 201 8, Plaintiff’s counsel sent to Defendant Robert Pether at his residence, 461 9 South Blythe Avenue, Fresno, California 93706, by 1m first class mail and by certified mail, return receipt requested, a copy of the summons and complaint in this action, two copies of the Notice and Acknowledgment of Receipt of Summons forms and a self-addressed, postage prepaid return envelope. (Bohn Decl., 1] 3.) Plaintiff did not receive fi'om Defendant Robert Pether the executed Notice and Acknowledgment of Receipt for a period of more than twenty days after mailing. (Bohn Decl., 11 4.) The address to which the documents were mailed was obtained fiom the information in Io the traffic collision report prepared by the Fresno Police Department on December 9, 2016. Since ‘11 Mr. Pether did not respond to service pursuant to 41 5.30, it was necessary for Plaintiff to hire a 12 process server to conduct a “skip trace” to verify the two-year-old address or to find an updated l3 address and serve Defendant by other means with another copy of the summons and complaint. (Bohn Decl., 11 5.) The skip trace revealed that 4619 South Blythe Avenue, Fresno, California 15 93706 was in fact Defendant’s residence address at all relevant times herein.(Ibid.) 16 was accomplished on December Service 12, 201 8 by substitute service at 4619 South 17 Blythe Avenue, Fresno, California 93706 and by mail on the same day to that address, pursuant Is Code of Civil Procedure to section 41 5.20. (Bohn Decl., 11 6.) Also, Plaintiff subsequently 19 achieved personal service of the statement of damages on the Defendant at 4619 South Blythe 20 Avenue, Fresno, California 93706. (Bohn Decl., 1] 5.) Accordingly, Plaintiff is informed and 21 believes that the address to which the Notice and Acknowledgment of Receipt of Summons was 22 originally sent on November 201 8 is in fact Defendant Pether’s residence address. 8, (Ibid.) 23 Plaintiff was charged the sum of $1 14.50 for the skip trace and the substitute service, 24 which is a common and reasonable amount for a skip trace and service in this geogaphjcal area. 25 (Bohn The filing Decl., 11 7.) fee for this motion to recover the service of process fees is $60.00. 26 Postage cost for service of this motion is $ 1 .42. (Ibid.) 27 On February 5, 2019, Defendant Pether served to Plaintiff’s counsel an answer to the 28 Summons and Complaint. (Bohn Decl., 1] 8.) 2 Memorandum of Points and Authorities in Support of Motion to Recover Costs of Personal Service [ILLEGAL ARGUMENT A. Service by Mail and Acknowledgement of Receipt is Permitted by Code of Civil Procedure Section 415.30 Service by mail and acknowledgment of receipt pursuant to section 41 5.30 requires only simply that Plaintiffs mail the defendant copies of the summons and complaint, with a request to acknowledge receipt thereof. If the defendant signs the acknowledgment, it waives further service of process. If the defendant refuses, some other method of service must be utilized bLtflLdej—endan; is liable for the costs incurred. (Code Civ. Proc. 41 5.30, subd. (d).) 10 B. Plaintiffs Complied with Code of Civil Procedure Section 415.30 to Properly ll Effectuate Service by Mail and Acknowledgement of Receipt 12 Required to be mailed to defendant are: (1) a copy of the summons and complaint; (2) 13 two copies of the notice and acknowledgment form; and (3) a return envelope, postage prepaid, l4 addressed to the sender. (Code Civ. Proc., § 415.30, subd. (a).) Ordinary, first class mail of the 15 be certified or registered or retum-receipt— foregoing is sufficient, and the mailing need not 16 The mailing address may include post office box requested. (Ibid.) as long as it is accompanied l7 by an acknowledgnent of receipt, under § 415.30. (Transamerica Title Ins. C0. v. Hendrix 18 (1995) 34 Cal.App.4th 740, 745.) 19 The notice must apprise defendant that unless he or she signs and returns the 20 acknowledgment within 20 days, service will be made in some other manner, and defendant 21 held liable for the extra expenses so incurred. (Code Civ. Proc. 415.30, subd. (b).) The 22 acknowledgment must simply evidence receipt of a copy of the summons and complaint. (1bid.) 23 An official form Notice and Acknowledgnent of Receipt has been adopted for mandatory use 24 Use of the form automatically by the Judicial Council. satisfies the above requirements. (Code 25 Civ. Proc. 415.30, subd. (6).) 26 On November 8, 201 8, Plaintiff mailed by first class mail gn_d by certified mail, return 27 receipt requested, to Defendant Robert Pether, at 4619 South Blythe Avenue, Fresno, California 28 93706, (1) a copy of the summons and complaint; (2) two copies of the notice and 3 Memorandum of Points and Authorities in Support of Motion to Recover Costs of Personal Service acknowledgment Judicial Council form; and (3) a return envelope, postage prepaid, addressed to the sender. (Bohn Dec1., fl 2.) The summons and complaint was delivered to Mr. Pether’s residence and a signed return receipt was sent back to Plaintist counsel. However, as of the date of filing this motion, Mr. Robert Pether still has not returned the notice and acknowledgment Judicial Council form in the postage prepaid, return envelope, addressed to Plaintiffs’ counsel. Thereafier, Robert Pether was sub—served the summons and complaint, and a statement of damages was personally served on Mr. Pether himself, at the same Blythe address by a reg'stered California process server, at Plaintiffs’ expense. Accordingly, the evidence supports a 10 finding that Mr. Robert Pether was properly served by mail with an acknowledgment of receipt. ll C. Defendant Refused Acknowledgment and Therefore Is Liable for Plaintiffs’ 12 Costs of Service “If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgement form set forth in subdivision (b) within 20 days fiom the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafier incurred in serving or attempting to serve the .” pafiy by another method. . (Code Civ. Proc., § 415.30.) If defendant fails to sigl and return the acknowledgment, service is not complete and will have to be made in some other manner. Nothing in the statute requires plaintiff to wait until 20 the end of the case to obtain reimbursement of service costs. The statute says plaintiff may 21 22 obtain reimbursement on motion “with 0r without notice” to the defendant; and the court order such reimbursement “except for good cause shown.” (Code Civ. Proc. 415.30, subd. M (d).) 23 The notice form gives defendants the chance to avoid the costs involved in effecting 24 service by some other method. Therefore, if they fail to sign and return the acknowledgment 25 within 20 days afier it is mailed, they become liable for whatever costs plaintiff incurs in 26 effecting service by some other method—regardless of the outcome of the lawsuit. (Code Civ. 27 Proc. 415.30, subd. (d).) Here, Mr. Robert Pether failed to sign and return the acknowledgment; 28 so, service had to be made in another manner, i.e., substitute service pursuant to Section 415.20. 4 Memorandum of Points and Authorities in Support 0f Motion to Recover Costs of Personal Service “[R]easonable expenses thereafter incurred in serving or attempting to serve the party by another method” includes the skip trace and investigation to verify the address of the Defendant before numerous service attempts are made at an address that is no longer current. Therefore, since Mr. Robert Pether failed to sign and return the acknowledgment form within 20 days after it was mailed, he has become liable for costs that Plaintiff incurred in effecting service in another manner. IV. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court award costs t0 Plaintiffs, for the substitute service of the summons and complaint on Mr. Robert Pether after his refusal to acknowledge service pursuant to Section 41 5.30, in the amount of $174.50, which includes the skip trace fee 0f $1 1 4.50 and the service of process fee of $39.50, this motion’s filing fee 0f$60.00, and this motion’s mailing cost of$ 1 .42. Dated: February 13, 2019 ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Wafla Jeffrey D. Bohn, Esq. Attorneys for Plaintiff 5 Memorandum 0f Points and Authorities in Support of Motlon to Recover Costs of Personal Service