Motion-Secondary: Lane VS Sawtelle

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MICHAEL S. BURKE (SBN 150062)
MARK D. FENSKE (SBN 160640) FILE
VOGL MEREDITH BURKE LLP ALA MEDA CO}
456 Montgomery Street, 20" Floor ie UNT
San Francisco, California 94104
Telephone No: (415) 398-0200
Facsimile No: (415) 398-2820
E-mail: mburke@vmbllp.com
mfenske@vmbllp.com

 

Attorneys for Defendants/Cross-Complainants/
Cross-Defendants

THE SYNDICATE ENTERPRISES GROUP, LLC, DBA
THE UPTOWN NIGHTCLUB, RAYMOND YEH and
ROBBIN GREEN-YEH

 

 

SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA

AARON LANE and MAYA
CULBERTSON-LANE,

Case No. RG19032106

ASSIGNED FOR ALL PURPOSES TO
JUDGE NOEL WISE
DEPT. 24

Plaintiffs,
vs.

DUSTIN SAWTELLE, et al. EX PARTE APPLICATION FOR ORDER FOR
PUBLICATION OF SUMMONS;
MEMORANDUM OF POINTS AND

AUTHORITIES

Defendants.

Complaint Filed: August 21, 2019
Trial Date: January 24, 2022

 

AND RELATED CROSS-ACTIONS

Cross-Complainants THE SYNDICATE ENTERPRISES GROUP, LLC dba THE UPTOWN
NIGHTCLUB, RAYMOND YEH and ROBBIN GREEN-YEH (hereafter “CROSS-COMPLAINANTS”)
hereby apply to the Court ex parte for an order directing that the Summons on CROSS-COMPLAINANTS’
Cross-Complaint be served on Cross-Defendant JEFF ARMSTRONG (AKA JEFF BLAGGARD) (hereafter
“ARMSTRONG”) by way of publication of the summons in the East Bay Times. The East Bay Times is a

newspaper of general circulation in Alameda County, which is the last location where ARMSTRONG was

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EX PARTE APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIESaA un & WwW HN

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known to reside. Therefore, publication in this newspaper is likely to give ARMSTRONG actual notice of the
pendency of this action.

This application is made on the grounds that CROSS-COMPLAINANTS have stated a cause of action
against the ARMSTRAONG, shown by the Cross-Complaint in this action, and ARMSTRONG has not been,

and cannot with reasonable diligence be found and served in any other manner.

Dated: October 11, 2021

BY:

 

Attorneys for Defendants/Cross-Complainants/
Cross-Defendants

THE SYNDICATE ENTERPRISES GROUP, LLC,
DBA THE UPTOWN NIGHTCLUB, RAYMOND
YEH and ROBBIN GREEN-YEH

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EX PARTE APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIESnn BB wW NV

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MEMORANDUM OF POINT: D AUTHORITIE:

 

A. FACTUAL BACKGROUND

The original Complaint in this action was filed by Plaintiffs on August 21, 2019. Prior to any
appearances by named defendants, Plaintiffs filed a First Amended Complaint on September 2, 2020.
Plaintiffs served CROSS-COMPLAINANTS with the First Amended Complaint on or about October 8,
2020. CROSS-COMPLAINANTS thereafter filed an Answer and a Cross-Complaint for indemnity on
November 9, 2020, at which time a Summons on the Cross-Complaint was issued.

On April 28, 2021, CROSS-COMPLAINANTS, with Court approval, amended the Cross-Complaint
to substitute ARMSTRONG in place of fictitiously-named cross-defendant ROE 1. Since that amendment,
CROSS-COMPLAINANTS have been diligently attempting to serve ARMSTRONG with the Summons and
Cross-Complaint.

CROSS-COMPLAINANTS hired investigators to conduct a skip trace on ARMSTRONG, which
returned a primary residence address of 1920 E. 20" St., Ap. 6 in Oakland, CA, and another address of 6011
Shattuck Ave. in Oakland. However, despite repeated attempts to locate and serve ARMSTRONG at these
two addresses, CROSS-COMPLAINANTS have been unable to locate him for service. (See declarations of
due diligence attached as Exhibits 1, 2 & 3 to Declaration of Mark D. Fenske submitted herewith.)

CROSS-COMPLAINANTS now asks the Court to permit the Summons to be served by publication
in the East Bay Times, a newspaper of general circulation in the county in which ARMSTRONG was last
known to reside.

B. LEGAL ARGUMENT
ae A Summons May Be Served by Publication Where a Party, Using Reasonable
Diligence, is Unable to Effect Service by Another Method

California Code of Civil Procedure §415.50 provides that “[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 ... [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.” Code Civ. Proc. § 415.50(a). When these requirements are met, “[t]he court shall order the
summons to be published in a named newspaper, published in this state, that is most likely to give actual

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EX PARTE APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIESce YN KD Hn ke BHD

ye Ye YY BN NR KR De ee ee OR
oda anne BN KF SBC MOKA AH BF WH SE S

 

 

notice to the party to be served.” Id. at subd. (b).
2 Cross-Complainants Have Been Unable to Serve Armstrong Despite Their Reasonably
Diligent Efforts

As stated above, the CROSS-COMPLAINANTS have asserted valid causes of action for indemnity,
apportionment of fault, etc., against ARMSTRONG, and having exercised reasonable diligence, have been
unable to locate him for service of the Summons and Cross-Complaint. As demonstrated by the
accompanying supporting declarations of diligence, reasonably diligent efforts to locate and serve
ARMSTRONG at his last known addresses have been unsuccessful. The 1920 E. 20" Street location is vacant,
and there has been no response at the Shattuck Avenue location. In light of this, CROSS-COMPLAINANTS
have been unable to attempt service of process through other methods, such as substituted service. CROSS-
COMPLAINANTS should therefore be permitted to serve ARMSTRONG by publication because the efforts
have met the reasonable diligence requirement.

“Reasonable diligence” means “a thorough, systematic investigation and inquiry conducted in good
faith by the party or his agent or attorney.” Watts ». Crawford (1995) 10 Cal.4th 743, 749, fn. 5. In other words,
the question is whether the plaintiff took “those steps which a reasonable person who truly desired to give
notice would have taken under the circumstances.” Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333.
Further, Alameda County Superior Court Local Rule 3.50 defines, at least for purposes of substitute service
under CCP §415.20(b), that “reasonable diligence” is shown by attempting personal delivery in good faith on
at least three occasions, taking place on at least two different days of the week at the person’s dwelling house,
with one attempt occurring before 8:00 a.m. and another occurring after 7:00 p.m. The declarations of due
diligence filed herewith reflect the dates and times service was attempted on ARMSTRONG at the two
addresses that were learned of through the skip trace:

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EX PARTE APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIESYA nN &F WwW WN

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1920 E. 20" St. Ap. 6, Oakland, CA 6011 Shattuck Ave., Oakland, CA
Tuesday, May 5, 2021 @ 6:55 p.m. Wednesday, June 3, 2021 @ 4:40 p.m.
Wednesday, June 3, 2021 @ 4:00 p.m. Monday, June 15, 2021 @ 7:00 p.m.
Monday, June 15, 2021 @ 6:30 p.m. Tuesday, September 9, 2021 @ 7:30 a.m.

 

Tuesday, September 9, 2021 @ 7:04 a.m.

 

 

 

 

Sunday, June 14, 2021 @ 7:05 p.m.

 

CROSS-COMPLAINANTS were not able to effect personal service on ARMSTRONG through any of these
attempts.

a5 The Cross-Complaint States a Valid Cause of Action Against Armstrong

Section 415.50(a)’s requirement that a “cause of action exists against the party upon whom service is
to be made” is established by a declaration “containing a statement of some fact which would be legal
evidence, having some appreciable tendency to make the jurisdictional fact appear...” Harris v. Cavasso (1977)
68 Cal.App.3d 723, 726. CROSS-COMPLAINANTS of course need not prove their claims at this early stage,
only show that there is a viable claim against the party to be served.

CROSS-COMPLAINANTS Cross-Complaint states causes of action for indemnity, contribution,
declaratory relief and tort of another. ARMSTRONG has been sued in place of fictious cross-defendant ROE
1. ARMSTRONG has been identified in discovery as having been involved in the hiring of the band whose
member, defendant Dustin Sawtelle, allegedly assaulted the plaintiff Aaron Lane. Therefore, he is an
appropriate party to the Cross-Complaint. Indeed, Plaintiffs have also amended their Complaint to substitute
ARMSTRONG in place of fictious defendant DOE 18.

4. The East Bay Times Is a Newspaper of General Circulation in Alameda and other Bay

Area Counties and is Likely to Provide Notice to Armstrong

The East Bay Times is part of the Bay Area News Group and is a newspaper of general circulation
within Alameda County and the surrounding Bay Area counties. It is therefore likely to provide actual notice
of service to Armstrong.

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EX PARTE APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIESwin

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Cc. CONCLUSION

CROSS-COMPLAINANTS have made a reasonably diligent attempts to serve ARMSTRONG with

the Summons and Cross-Complaint, without success. Therefore, CROSS-COMPLAINANTS respectfully

request the Court to order service of the Summons and Cross-Complaint by publication on cross-defendant

JEFF ARMSTRONG (aka Jeff Blaggard).

Dated: October 11, 2021

BY:

    

MICHAEL S. BURKE
MARK D. FENSKE
Attorneys for Defendants/Cross-Complainants/
Cross-Defendants

THE SYNDICATE ENTERPRISES GROUP, LLC,
DBA THE UPTOWN NIGHTCLUB, RAYMOND
YEH and ROBBIN GREEN-YEH

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EX PARTE APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIES