Steven Gummo v. Jon Lasser, et al.

Case Number

21CV03644

Case Type

Hearing Date / Time

Mon, 08/18/2025 - 16:20

Nature of Proceedings

Motion Of Defendant Douglas L. Meyer To Set Aside And Vacate Default And Default Judgment

Tentative Ruling

For Plaintiff Steven Gummo: William B. DeClercq, DeClercq Law PC

For Defendant Douglas L. Meyer: Robert S. McWhorter, Buchalter

Additional Defendants: See List

                      

RULING

For all reasons discussed herein, the motion of Defendant Douglas L. Meyer to set aside and vacate default and default judgment is granted. The default of Defendant Douglas Meyer entered on March 27, 2023, and, as to Defendant Douglas Meyer only, the Court judgment by default entered on May 24, 2023, as amended by the Court judgment by default entered on March 13, 2024, are each set aside and vacated. Further, the Order For Publication Of Summons Or Citation entered in this case on December 27, 2022, is vacated.

Background

On September 13, 2021, Plaintiff Steven Gummo filed a complaint against Defendants Pura Industries, LLC (Pura), Humboldt J&G Group, LLC (Humboldt), Jon Lasser (Lasser), Douglas Meyer (Meyer), Pura Cali Management Corp. (Pura Cali), Pura Holdings America Inc. (Pura Holdings), G&J Enterprises, LLC (G&J), Forward International GW, Inc. (Forward International), Rogue Valley Land Management LLC (Rogue Valley), Emerald Farm Management, LLC (Emerald Farm), PNW Wholesalers, LLC (PNW), Pura Vineyards LLC (Pura Vineyards), Pura Wyoming, LLC (Pura Wyoming), Diamond J Farms LLC (Diamond Farms), Pura Cana LLC (Pura Cana), Bottle Rock West LLC (Bottle Rock West), Bottle Rock East LLC (Bottle Rock East), Pura Valley LLC (Pura Valley), Pura Extractions LLC (Pura Extractions), KJ Formulations LLC (KJ) (collectively, Defendants), alleging ten causes of action: (1) breach of employment contract; (2) breach of settlement agreement; (3) fraud – false promise; (4) wage theft; (5) retaliation against whistleblower; (6) solicitation of employee by misrepresentation (Lab. Code, § 970); (7) failure to issue accurate wage statements (Lab. Code, § 970); (8) unjust enrichment; (9) breach of fiduciary duty (against Lasser and Meyer only); and (10) unfair business practices (Bus. & Prof. Code, § 17200).

Plaintiff alleges in the complaint that Defendants, through Lasser and Meyer, made oral and written representations in an offer letter dated September 30, 2020, and on various dates in October and November 2020, in which Defendants promised that Plaintiff would, among other things, receive an annual salary of $250,000 and an immediate grant of 150,000 vested Class C shares in Pura if Plaintiff would leave their job, move to Santa Barbara, and join Defendants’ business as an employee. (Compl., ¶¶ 2-4.) After Plaintiff quit their job and moved to California, Defendants failed to provide the promised Class C shares, to pay wages to Plaintiff, to provide wage statements, and to make appropriate withholdings. (Compl., ¶ 6.) Plaintiff confronted Defendants regarding their alleged violations of law and demanded that they be resolved. (Compl., ¶ 7.)

Plaintiff further alleges that when Defendants failed to correct their purported violations of law, Plaintiff commenced a claim for wage theft with the California Department of Labor. (Compl., ¶ 7.) Defendants retaliated against Plaintiff by cutting Plaintiff off from corporate communications, failing to provide any meaningful work assignments, and ignoring Plaintiff altogether. (Ibid.) Plaintiff’s wage claim was resolved in a written settlement agreement which Defendants have failed to perform. (Compl., ¶ 8.) Defendants also failed to pay Plaintiff’s promised salary after June 30, 2021. (Ibid.)

The above is not intended to be an exhaustive summary of the claims alleged in Plaintiff’s complaint.

Court records relevant to the present proceeding reflect that on December 22, 2022, Plaintiff filed an application (the Application) for an order that the summons directed to Meyer be published in the Alameda Sun. (Application, ¶¶ 2-3 [identifying Defendant as Meyer].) On December 27, 2022, the Court entered an order (the Publication Order) granting the Application and ordering that service of the summons shall be made upon Meyer by publication in the Alameda Sun. (Dec. 27, 2022, Order For Publication Of Summons.)

Court records further reflect that on January 30, 2023, Plaintiff filed a proof of service, executed by their counsel, William B. DeClercq (DeClercq), under penalty of perjury, stating that the summons directed to Meyer was published in the Alameda Sun on January 5, 12, 19, and 26, 2023. (Jan. 30, 2023, POS at p. 1.)

On March 27, 2023, the default of Meyer (the Default) was entered as requested by Plaintiff.

After a hearing held on April 26, 2023, the Court rendered judgment in favor of Plaintiff and against Lasser, Meyer, Pura, Pura Holdings, and G&J, in the amount of $231,135.18. (See Apr. 26, 2023, Minute Order.) A Court judgment by default (the Default Judgment) was entered on May 24, 2023, in favor of Plaintiff and against these Defendants in the amount noted above.

On July 24, 2023, Plaintiff filed a motion to amend the judgment to include attorney’s fees in the amount of $50,373.75, which the Court granted pursuant to its Minute Order dated August 23, 2023. An amended Court judgment by default (the Amended Default Judgment) was entered on March 13, 2024, in favor of Plaintiff and against the same Defendants described above, in the amount of $293,745.68.

On April 3, 2025, Meyer filed a motion (the motion or present motion) for an order setting aside and vacating the Default, and the Default Judgment and Amended Default Judgments (collectively, the Default Judgments), on the grounds that the Default and Default Judgments are void because, among other things, Plaintiff failed to exercise reasonable diligence before filing the Application seeking service by publication.

The Court’s records reflect that Plaintiff did not timely file an opposition to Meyer’s motion.

On May 28, 2025, Meyer filed a “reply” stating that a copy of the motion was served on Plaintiff’s counsel, and that Meyer’s counsel left a voicemail with and transmitted email correspondence to Plaintiff’s counsel in regard to the motion. In the “reply”, Meyer also asserted that Plaintiff’s opposition to the motion was due on May 22, 2025, and that no opposition appears on the Court’s docket.

On June 4, 2025, the Court entered a Minute Order (the Order) adopting its tentative ruling granting the motion. Pursuant to that Order, the Court set aside the Default, and vacated the Default Judgments as to all parties.

On June 13, 2025, Plaintiff filed an ex parte application (the ex parte application) for an order setting aside and vacating the Order and re-setting the motion for hearing, on the grounds that the Order was improvidently entered without proper notice. Plaintiff filed errata to the ex parte application on June 16, 2025, to which a copy of Plaintiff’s proposed opposition to the motion was attached.

After a hearing on June 20, 2025, the Court adopted its tentative ruling granting Plaintiff’s ex parte application and setting the present motion for a hearing on August 20, 2025. On the same date, the Court entered an order noting that on June 18, 2025, the parties filed a joint stipulation to vacate the Order and set a new hearing on the motion, and directing that the motion go forward as requested with Plaintiff’s opposition due on August 7, and Meyer’s reply due on August 13, 2025.

The motion:

The present motion is supported by a declaration of Meyer, who states that he was born and has lived most of his life in New York, and has never lived in California. (Meyer Decl., ¶ 2.) Meyer asserts that he temporarily relocated to London between 1982 and 1986, and to North Carolina from 2004 through 2006, after which Meyer returned to New York where Meyer has continuously resided and maintained a permanent domicile since 1973. (Ibid.)

Meyer further states that he has never owned, leased, or maintained any real property in California, and has never held a California driver’s license, registered to vote in California, paid personal income taxes to the State of California, maintained a mailing address in California, held a bank or utility account in California, maintained an office or telephone listing in California, registered to do business in California, or held any professional licenses issued by the State of California. (Meyer Decl., ¶ 3.) With the exception of Pura and Pura Cali Management Corp. (PCM) as further discussed below, Meyer also states that he has never owned any companies headquartered or incorporated in California. (Ibid.)

Meyer explains that Pura is a California limited liability company whose sole member and manager is PCM. (Meyer Decl., ¶ 4.) Lasser was Pura and PCM’s President and Chief Financial Officer. (Ibid.) Meyer declares that copies of documents for Pura and PCM are attached to a compendium of evidence (the COE) submitted in support of the motion. (Ibid.; COE, Exh. 1 & 2.)

According to Meyer, Pura engaged Meyer as a consultant in 2016 to assist in developing Pura’s cannabis-related business operations and to add to the company’s credibility. (Meyer Decl., ¶ 5.) In this position, Meyer’s role was limited to raising investment capital. (Ibid.) In October 2018, Meyer became PCM’s Chief Executive Officer or “CEO”, to assist in capital-raising efforts. (Ibid.)

Meyer states that he performed his roles as director or shareholder of PCM from Meyer’s residence in New York, and did not conduct any business activities for, or attend shareholder or director meetings of, PCM or Pura in California. (Meyer Decl., ¶ 5.) Apart from Meyer’s efforts to help secure investment capital, which Meyer performed outside of California, Meyer performed no services for PCM, Pura, or any affiliated entity, and never received wages, salary, or other compensation from Pura or PCM. (Ibid.)

Meyer met Plaintiff’s father, Peter Gummo (Peter), a couple of times in Rhode Island to discuss a possible investment in PCM or Pura. (Meyer Decl., ¶ 6.) (Note: Due to common familial surnames, the Court refers to Plaintiff’s father by his first name to avoid confusion. No disrespect is intended.) Peter referred Plaintiff to Pura for potential employment. (Ibid.) Meyer refers to a “Memorandum” from Peter directed to Meyer and Lasser dated January 20, 2020, regarding Plaintiff’s employment. (Ibid.; COE, Exh. 3.)

Meyer further states that he met Plaintiff during a second meeting with Peter in Rhode Island, and that he believes Plaintiff at that time resided in Connecticut or Rhode Island. (Meyer Decl., ¶ 7.) Meyer asserts that Lasser and not Meyer exclusively managed all the communications, compensation, and “HR” with Plaintiff. (Ibid.) Though Lasser asked Meyer to prepare an “Offer Memo” and an initial offer letter in regard to Plaintiff, Meyer returned those documents to Lasser who dictated their terms and conditions. (Ibid.) Meyer contacted Plaintiff, who resided in Connecticut or Rhode Island, by telephone or email from New York. (Ibid.)

Meyer resigned as CEO of PCM in October 2021, after PCM failed to reimburse Meyer for travel-related expenses Meyer incurred while attempting to raise capital, and remains a creditor of PCM. (Meyer Decl., ¶¶ 8 & 10.) Meyer further states that, during his tenure as CEO, Meyer had no authority over, or involvement in, PCM’s or Pura’s day-to-day operations or management which were under the exclusive control of Lasser. (Meyer Decl., ¶ 8.)

Meyer also asserts that he was excluded from and had no managerial role in Pura or PCM’s decision-making or operations, and did not have an employment relationship with Plaintiff, supervise Plaintiff’s work, or direct Plaintiff’s day-to-day activities or the manner in which Plaintiff performed his job, among other things. (Meyer Decl., ¶ 8.) According to Meyer, all aspects of Plaintiff’s roles, responsibilities, and compensation were managed by Lasser and the entities Lasser controlled, and many of the purported events that Plaintiff asserts in the complaint would have happened after Meyer resigned. (Ibid.) Meyer also had no direct involvement in, participation with, or knowledge of the wage claim that Plaintiff filed against Pura, and was not a signatory or a party to any settlement agreement that may have resulted from that proceeding. (Meyer Decl., ¶ 9.)

Meyer did not discover that Plaintiff filed a complaint against Meyer in this action until April 26, 2024, when Plaintiff filed an action (the New York Action) attempting to domesticate the Default Judgments in New York, and Meyer received an amended summons and notice of summary judgment filed in that action. (Meyer Decl., ¶¶ 10 & 15.) Upon receipt of these documents, Meyer retained counsel to defend and dismiss the New York Action. (Meyer Decl., ¶ 10 & COE, Exh. 5.)

Meyer asserts that on March 7, 2025, the Court in the New York Action denied Meyer’s motion to dismiss, and held that any objections to jurisdiction or service must be raised in the California Court. (Meyer Decl., ¶ 17.)

Meyer further states that he has never read the Alameda Sun, lived in the geographic distribution area of that publication, and did not know of its existence. (Meyer Decl., ¶ 13.)

Meyer has also reviewed 3535 Brunell Drive, Oakland, California (3535 Brunell Drive), the address where Plaintiff claims service of the summons directed to Meyer was attempted. (Meyer Decl., ¶ 10.) Meyer has never owned, rented, resided in, visited, or had any connection to that address. (Ibid.)

In addition, Meyer has been advised that Douglas Dean Meyer owns 3535 Brunell Drive. (Meyer Decl., ¶ 11.) Meyer states that his middle initial is “L”, that Meyer has never used any other name or been associated with the name “Douglas Dean Meyer” or “Douglas D. Meyer”, and that Meyer has never had any involvement with or been related to Douglas Dean Meyer or any related trusts. (Ibid.) Meyer also never suggested or indicated to Plaintiff that Meyer lived at 3535 Brunell Drive. (Meyer Decl., ¶ 14.)

To Meyer’s knowledge, Plaintiff knew that Meyer resided in New York because, among other things, Meyer’s communications with Plaintiff were primarily made from Meyer’s residence in New York and via a cell phone with a New York area code, which Meyer states is “914-523-8434” (the Cell Number). (Meyer Decl., ¶ 14.) Meyer asserts that he never suggested or indicated to Plaintiff that Meyer lived in California and that, since filing the present action, Plaintiff never attempted to call or text Meyer on the Cell Number. (Ibid.) Meyer also contends that Plaintiff admitted in the New York Action that he spoke and texted with Meyer at the Cell Number. (Meyer Decl., ¶ 14 & COE, Ex. 4.)

Meyer also describes circumstances which Meyer contends demonstrate the baseless nature of the allegations of the complaint, and the personal and financial hardship caused by the Default Judgments. (Meyer Decl., ¶¶ 18-25.)

Meyer also submits in support of the motion a declaration of Douglas Dean Meyer (DDM), who states that they have resided at 3535 Brunell Drive for over twenty years, and that a revocable trust has held title to that property since 2015. (DDM Decl., ¶ 2.) DDM asserts that Meyer has no interest in and has never visited 3535 Brunell Drive, and that DDM has never spoken with or had any contact with Meyer, is not related to Meyer, has never had any involvement with Pura, Plaintiff, or PCM, and is not a Defendant in this action. (DDM Decl., ¶ 3.)

DDM also states that, until Meyer’s attorney contacted DDM in March 2025, DDM did not know of the existence of this case, was never contacted by Plaintiff, was never served with the summons and complaint in this matter or contacted by a process server, and is not aware of any attempts to serve the summons and complaint. (DDM Decl., ¶ 4.)

The motion is also supported by a declaration of Meyer’s counsel, Robert S. McWhorter (McWhorter), who declares that he accessed the Court’s records for this case, copies of which are attached to the COE. (McWhorter Decl., ¶ 3 & COE, Exhs. 6-11.) McWhorter also conducted searches for Meyer and the Cell Number on Lexis-Nexis and “fastpeoplesearch.com”, excerpts of which are also attached to the COE. (McWhorter Decl., ¶ 4 & COE, Exh. 12.)

McWhorter asserts that on April 2, 2025, McWhorter attempted to meet and confer with DeClercq to request that Plaintiff set aside and vacate the default and Default Judgments taken against Meyer, but could not reach DeClercq. (McWhorter Decl., ¶ 5.) McWhorter left a message asking DeClercq to return McWhorter’s call, but as of the execution of the McWhorter declaration, had not yet received a return call. (Ibid.)

Plaintiff’s opposition to the motion:

On August 7, 2025, Plaintiff filed their opposition to the motion. In support of that opposition, Plaintiff submits a declaration stating “I am Plaintiff Rachel Gummo, formerly known as Steven Gummo, before I legally changed my name.” (Gummo Decl., ¶ 1.) Plaintiff further states that after Plaintiff moved to California to work for “Pura”, and during Plaintiff’s employment at Pura, Plaintiff reported to Meyer who Plaintiff understood to be a member of Pura’s executive team. (Gummo Decl., ¶ 2.) (Note: The Court notes that the term “Pura” is not defined in Plaintiff’s declaration or the motion. Based on information appearing in the present record including correspondence attached to Plaintiff’s declaration, the Court understands “Pura” to refer to Pura Industries.)

Plaintiff provides in their declaration information regarding Plaintiff’s complaints to Meyer about purported labor law violations of Pura, and direct communications between Meyer and Plaintiff regarding Plaintiff reporting to Meyer, whether Pura would honor its commitments to Plaintiff, a pay change, and Plaintiff’s willingness and ability to work, among other things. (Gummo Decl., ¶¶¶ 2-4 & Exh. A.)

Plaintiff asserts that Plaintiff regularly communicated with Meyer by text messages and phone calls to and from the Cell Number, including on July 16, 2021. (Gummo Decl., ¶¶ 4, 5 & Exh. B [text message correspondence].) Plaintiff also believes that their counsel forwarded an email from Meyer to Pura’s counsel. (Gummo Decl., ¶ 5.)

In addition, Plaintiff asserts that they forwarded a draft complaint to Meyer on September 10, 2021, in which Meyer was named as a Defendant, and provided the Cell Number to Plaintiff’s counsel on September 22, 2021. (Gummo Decl., ¶¶ 6-7 & Exh. C.) Plaintiff believes their counsel telephoned Meyer at the Cell Number to provide notice of this lawsuit. (Gummo Decl., ¶ 7.)

Plaintiff’s opposition is also supported by a declaration of DeClercq in which DeClercq asserts that he forwarded to Pura’s former attorney Jessica Linehan (Linehan), a July 15, 2022, “Notice of Pay Change” from Meyer to Plaintiff. (DeClercq Decl., ¶ 9 & Exh. D.) DeClercq asserts that Linehan “admitted she was aware of the ‘Notice of Pay Change’ and informed [DeClercq] that the correspondence from Mr. Meyer had been prepared with her legal advice, under her supervision and direction.” (DeClercq Decl., ¶ 9.) For this reason, DeClercq believes Meyer was aware of the wage disputes with Plaintiff. (Ibid.)

DeClercq also notified Linehan of the lawsuit at the time it was filed, and asked Linehan to accept service of process which Linehan declined to accept. (DeClercq Decl., ¶ 10 & Exh. E.) DeClercq also believes that Plaintiff forwarded DeClercq’s email and the unfiled complaint to Meyer on September 10, 2021. (Ibid.)

DeClercq describes what DeClercq characterizes as “[s]ignificant time and effort [that] was expanded [sic] into locating an address for and serving” Meyer and “substantial efforts to directly notify” Meyer of this lawsuit, including by telephoning Meyer at the Cell Number, emailing the summons and complaint to Meyer, asking a paralegal to search for an address for Meyer which resulted in “too many positive matches both in New York and in California to pursue...”, and using a process serving company and third-party investigation database to conduct a “skiptrace” search using Meyer’s name and phone number. (DeClercq Decl., ¶¶ 11-16 & Exhs. F- G.)

According to DeClercq, the “skiptrace search” described above located a “Douglas Meyer” at 3535 Brunell Drive and at “200 East 79th Street, Apt. 18B, New York, New York, 10075...” (the New York Address). (DeClercq Decl., ¶ 17.) DeClercq noted that 3535 Brunell Drive is proximately located to the principal place of business of Pura Holdings, and that Meyer was listed as a director and chief executive of Pura at the time the case commenced and at the time of service. (DeClercq Decl., ¶ 18 & Exhs. H & I [Nevada and California Secretary of State information pages].)

Based on the proximity of 3535 Brunell Drive to the principal place of business of companies who publicly identified Meyer as a director and chief executive officer, DeClercq believed that 3535 Brunell Drive was Meyer’s home address and made attempts to serve Meyer at that address. (DeClercq Decl., ¶ 22.) According to DeClercq, a process server also attempted to serve Meyer at the New York Address but was told Meyer no longer resided there. (DeClercq Decl., ¶ 23.) For these additional reasons, DeClercq believed that Meyer resided at 3535 Brunell Drive. (DeClercq Decl., ¶ 24.)

DeClercq also describes purported service of process on Pura and Pura Holdings which, according to DeClercq, occurred prior to Plaintiff’s attempts to serve Meyer. (DeClercq Decl., ¶¶ 26-27.)

The above summaries of information and evidence appearing in declarations submitted in support of and in opposition to the present motion are not intended to be exhaustive, and the Court considers all relevant and admissible evidence to determine the present motion.

Analysis

Noted above, Plaintiff asserts in this proceeding that Plaintiff is now known as Rachel Gummo. The Court has no record showing that Plaintiff filed and served an appropriate motion for an order allowing Plaintiff to amend the complaint to reflect a change of Plaintiff’s name. (See Code Civ. Proc., § 473, subd. (a)(1) [amendments to a pleading may be allowed to correct the name of a party].) For this reason, and notwithstanding whether Plaintiff has a right to change their name or refer to themselves by a different name, the purported change in Plaintiff’s name has not been established as a matter of record in this action. (See, e.g., Wood v. Superior Court (2024) 100 Cal.App.5th 717, 722 [general discussion].) For this reason, and as the Court requires accurate and consistent records, the Court will refer to Plaintiff, if necessary, by the name Plaintiff has identified and alleged in the complaint. No disrespect is intended.

For all reasons discussed above, the present record reflects that the parties have agreed to vacate, and the Court has effectively vacated, the Order pursuant to which the Court adopted its tentative ruling granting the Set Aside Motion without considering any opposition of Plaintiff to that motion. Therefore, the Court will presently consider and determine the motion anew.

Noted above, Meyer argues or effectively argues in the present motion that Plaintiff failed to exercise reasonable diligence before filing, and failed to show sufficient reasonable diligence in, the Application. For this reason, Meyer contends, the Publication Order was entered incorrectly based on the deficiencies in the Application. (See, e.g., Notice at p. 2, ll. 20-22 & Memo. at pp. 15-17.) Meyer further argues that, because service of the summons by publication was not justified and therefore invalid, Plaintiff has failed to effectuate proper service of process on Meyer rendering the Default and Default Judgments void. (Ibid.)

“In the absence of a voluntary submission to the authority of the Court, compliance with the statutes governing service of process is essential to establish that Court’s personal jurisdiction over a Defendant.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439, fn. omitted (Dill).) A Defendant’s “failure to file an answer to [an] improperly served complaint [does] not represent a default.” (Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746 [service by publication was invalid requiring the Court to “vacate the default it had erroneously entered.”].) In addition, “a default judgment entered against a Defendant who was not served with a summons in the manner prescribed by statute is void.” (Dill, supra, 24 Cal.App.4th at p. 1444.)

As a threshold issue, Plaintiff asserts in opposition to the present motion that the motion should be denied as untimely because it was filed more than sixth months after entry of the Default Judgments.

Under Code of Civil Procedure section 473, “[t]he Court ... may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)  “An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or Court record without consideration of extrinsic evidence. [Citations.] There is no time limit to attack a judgment void on its face. [Citations.]” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.)

Relevant under the circumstances present here where service on a defaulting Defendant is by publication, the “judgment roll” includes “the affidavit for publication of summons, and the order directing the publication of summons.” (Code Civ. Proc., § 670, subds. (a) & (b); see also Dill, supra, 24 Cal.App.4th at p. 1441; Kaufmann v. California Mining & Dredging Syndicate (1940) 16 Cal.2d 90, 93 [discussing “defects in some of the documents constituting part of the judgment roll and relating to the service of summons...”].) Considering that the Default was entered after Meyer failed to answer the complaint and that the present motion is made on the grounds that the Default and Default Judgments are void due to insufficiencies or deficiencies in the Application, the “judgment roll” for present purposes includes the Application and the Publication Order. Therefore, to the extent any invalidity of the Default or the Default Judgments is apparent from an inspection of the Application, including the Publication Order, the motion is timely.

“Moreover, even where relief is no longer available under statutory provisions, a trial Court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process....” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228 (Gorham).) To the extent Meyer argues that the entry of the Publication Order, the Default, or the Default Judgments are void for lack of due process, the Court has inherent power to vacate these orders and judgments based on a sufficient showing by Meyer. For these and all further reasons discussed above, the present record does not indicate or suggest that the motion is untimely based on the points advanced by Meyer.

Plaintiff also argues that Meyer had actual knowledge of this litigation. “Knowledge by a Defendant of an action will not satisfy the requirement of adequate service of a summons and complaint.” (Gorham, supra, 186 Cal.App.4th at p. 1226.) “When a Defendant argues that service of summons did not bring him or her within the trial Court’s jurisdiction, the Plaintiff has ‘the burden of proving the facts that did give the Court jurisdiction, that is the facts requisite to an effective service.’ [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 (American Express).) For these reasons, notwithstanding any knowledge by Meyer of this litigation, Plaintiff bears the burden to show that Meyer was validly served with the summons by publication in the Alameda Sun. (Dill, supra, 24 Cal.App.4th at p. 1441 [general discussion of the parties’ burdens].)

Code of Civil Procedure section 413.10 et seq. set forth the manner in which a summons must or may be served. (Note: Undesignated statutory references shall be to the Code of Civil Procedure unless otherwise indicated.) Relevant here, “[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 …: [¶] (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.” (Code Civ. Proc., § 415.50, subd. (a)(1).)

“If service of a summons by other means proves impossible, service may be effected by publication, upon the trial Court’s approval...” (Rios v. Singh (2021) 65 Cal.App.5th 871, 880 (Rios).) “If a Defendant’s address is ascertainable, a method of service superior to publication must be employed, because 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 (Watts).)

For purposes of section 415.50, “ ‘[t]he term “reasonable diligence” … denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. [Citations.] A number of honest attempts to learn Defendant’s whereabouts or his address by inquiry of relatives, … and by investigation of appropriate city and telephone directories, [voter registries, and assessor’s office property indices situated near the Defendant’s last known location], generally are sufficient. These are the likely sources of information, and consequently must be searched before resorting to service by publication.’ [Citations.] ‘Before allowing a Plaintiff to resort to service by publication, the Courts necessarily require him to show exhaustive attempts to locate the Defendant, for it is generally recognized that service by publication rarely results in actual notice. [Citations.]’ [Citation.]” (Watts, supra, 10 Cal.4th at p. 749, fn. 5.)

“It is well established that the affidavit submitted under section 415.50 must establish reasonable diligence by ‘probative facts’ based on personal knowledge.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42 (Olvera).) “Whether the Plaintiff exercised the diligence necessary to justify resort to service by publication depends on the facts of the case. [Citation.] The question is whether the Plaintiff took the steps a reasonable person who truly desired to give notice of the action would have taken under the circumstances.” (Rios, supra, 65 Cal.App.5th at p. 880.)

To support the points advanced in the opposition to the present motion, Plaintiff appears to rely on an application and order to publish the summons in the Santa Ynez Valley News. (Motion at p. 9, ll. 5-8.) For example, DeClercq asserts in his declaration that Plaintiff filed an application requesting permission to serve the summons on Meyer, and that the Court entered an order directing that service of the summons on Meyer be made, by publication of the summons in the Santa Ynez Valley News. (DeClercq Decl., ¶¶ 29-30.)

The Court’s records in this action reflect that on November 16, 2022, Plaintiff filed an application for publication of the summons in which Plaintiff identified Lasser as the person to be served, and requested publication of the summons directed to Lasser in the Santa Ynez Valley News. (Pl. Nov. 16, 2022, Application For Publication Of Summons, ¶¶ 3 & 6.) Nowhere in that application does Plaintiff identify Meyer as a person to be served by publication in the Santa Ynez Valley News. Moreover, the Application at issue in this proceeding requests publication of the summons in the Alameda Sun and not the Santa Ynez Valley News. (See Application, ¶ 6.)

Apart from the Application, the Court is not aware of the filing by Plaintiff of any other application identifying Meyer as the person to be served, or an application requesting publication of a summons directed to Meyer in the Santa Ynez Valley News. For these reasons, the Application is, for present purposes, the operative document in regard to the Publication Order, the Default, and the Default Judgments at issue, and not the application filed on November 16, 2022, addressing the summons directed to Lasser as further described above.

In the Application, Plaintiff asserts that Meyer could not be served by personal service pursuant to section 415.10, based on efforts described as “Photos of the outside of the home”, which appear to depict the front door of a residential dwelling and a fence bearing the number “3535”. (Application, ¶ 7(a)(1) & Attachment 7(a) at pdf pp. 6-8.)

Plaintiff also asserts in the Application that Meyer could not be served by substituted service pursuant to section 415.20 based on “Four service attempts logs...” purporting to demonstrate attempts at substituted service on Meyer. (Application, ¶ 7(b)(1). The “four service attempts logs” are attached to the Application are set forth in a “Declaration of Diligence” executed under penalty of perjury by Cordelia Fowler (Fowler). (Application, Attachment 7(b).) Beneath Fowler’s signature on the Declaration of Diligence appears a “Registration No.: 1545” and “Registration County: Alameda County”. (Application, Attachment 7(b) at pdf p. 12.)

The Declaration of Diligence describes a “Serve Attempt #1” and “Serve Attempt #2” at 3535 Brunell Drive, which occurred on December 13, 2022, at, respectively, 5:32 p.m. and 8:04 p.m. (Application, Attachment 7(b) at pdf p. 11.) In regard to these attempts, Fowler states: “There was no answer. The house was dark and quiet...” and “There was no answer and l saw cameras around the house....” (Ibid.)

“Serve Attempt #3” and “Serve Attempt #4” described in the Declaration of Diligence occurred on December 14, 2022, at, respectively, 9:42 a.m. and 2:12 p.m., and as to these attempts, Fowler states: “There was no answer and the house was quiet. I saw cameras around the house...” and “There was no answer and no noise or movement was heard from inside. The house was quiet.” (Application, Attachment 7(b) at pdf p. 12.)

Plaintiff also states in the Application that Meyer could not be served by mail service to a California or out-of-state address because “No mailing address is known” for Meyer, and because the last known mailing address for Meyer is within California. (Application, ¶¶ 7(c)(2) & (d)(2).) In addition, Plaintiff asserts in the Application that they “cannot ascertain the current dwelling house, usual place of abode, usual place of business, or usual mailing address of” Meyer. (Application, ¶ 8(a) [also referring to Declaration of Diligence].)

In addition, emails from DeClercq, addressed to “Mr. Meyer” which were transmitted to the email address “Doug@purcali.com” appear in attachment 8(a) of the Application. In these email correspondences, DeClercq requests that the recipient “sign and return the Notice and Acknowledgment of Receipt”, asserts that the recipient “failed to return” a phone call, and states that “our efforts to locate and serve you have not been successful.” (Application, Attachment 8(a).) DeClercq also states in these emails that Plaintiff will seek to publish the summons and secure a default judgment. (Application, Attachment 8(a) at pdf pp. 15-16.)

Upon further consideration of the Application, and due process concerns, the Court finds that the Application is deficient for all reasons discussed herein.

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” (Code Civ. Proc., § 415.10.) Information and evidence appearing in the Application shows or demonstrates that Plaintiff ostensibly made four attempts to personally deliver a copy of the summons to Meyer at 3535 Brunell Drive, over the course of two days. Though the Court questions the sufficiency of these facially scant attempts at the address identified in the Application, absent from the Application are any foundational facts showing why Plaintiff believed Meyer resided at 3535 Brunell Drive, or why Plaintiff did not believe Meyer resided at this address. (Olvera, supra, 232 Cal.App.3d at p. 42 [general discussion].)

Notwithstanding the absence of foundational facts described above, it can be inferred from the attempts at personal delivery of the summons at 3535 Brunell Drive described in the Application, that Plaintiff believed Meyer resided or was located at that address. Absent information in the Application showing why Plaintiff did not believe Meyer resided or was located at that address, it is unclear why Plaintiff also asserts in the Application that a copy of the summons and complaint could not be left at or mailed to 3535 Brunell Drive. (See, e.g., Code Civ. Proc., § 415.20 & § 415.30.) Instead, information appearing on the face of the Application suggests or indicates that service of the summons and complaint could have been effected in the manner described in sections 415.20 or 415.30. Plaintiff also fails to include in the Application any information showing that Plaintiff attempted to serve Meyer in another manner as set forth in these statutes.

In addition, to the extent it can be inferred from the scant information offered in the Application that Meyer was not located and could not reasonably be served at 3535 Brunell Drive, or that 3535 Brunell Drive is not Meyer’s residence, there is no information provided in the Application showing any attempt by Plaintiff to learn Meyer’s location. (Watts, supra, 10 Cal.4th at p. 749, fn. 5 [general discussion re sufficiency of Plaintiff’s efforts to locate Defendant].)

For example, information appearing in the Application suggests or indicates that Plaintiff or their counsel possessed a telephone number and email address for Meyer. (See Application, Attachment 8(a) at pdf p. 15.) The undisputed present record suggests that this telephone number was ostensibly the Cell Number, which Plaintiff does not dispute Meyer used to communicate with Plaintiff in 2021. (Gummo Decl., ¶ 4.) Though the available information and evidence, including the filing of the New York Action which Plaintiff does not dispute, suggests that Plaintiff knew or suspected that Meyer was located in New York at the time the Application was filed, this information does not appear in the Application.

Also absent from the Application is any “indication that [Plaintiff] had employed any of the usual means to find [Meyer].” (Olvera, supra, 232 Cal.App.3d at p. 42.) For example, to the extent Plaintiff did not believe Meyer resided at 3535 Brunell Drive, the Application does not include any information showing that Plaintiff undertook efforts to investigate or inquire of likely sources of information regarding Meyer’s correct residence or location.

Upon further consideration of the Application, the Court finds, for all reasons discussed above, that the Application fails to demonstrate the necessary “quantum of diligence as would justify resort to service by publication.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333.) It also appears to the Court, upon further consideration, that Plaintiff failed to use reasonable diligence to serve Meyer with the summons and complaint “by a means superior to publication” before filing the Application. (Rios, supra, 65 Cal.App.5th at p. 881.)

Though Plaintiff includes in their opposition to the motion information and evidence which Plaintiff contends demonstrates the exercise of reasonable diligence sufficient to justify service of the summons on Meyer by publication, this information does not appear in the Application. Furthermore, even if the Court were to consider this information, it would not change the Court’s reasoning or analysis.

For example, though DeClercq states in his opposing declaration that the process server who attempted service at the New York Address was told that Meyer no longer resided there, Plaintiff offers no information, either in the opposition or the Application, showing that Plaintiff conducted any subsequent investigation or inquiry of any other sources of information to locate Meyer in New York. There is also no information showing that Plaintiff made “[a] number of honest attempts to learn [Meyer’s] whereabouts....” (Rios, supra, 65 Cal.App.5th at p. 880.) Instead, the information appearing in the opposition fails to show the required exhaustive attempts to locate Meyer before filing the Application.

For all reasons further discussed above, the issues raised in the present motion, which have now been fully briefed by the parties, are sufficient to show that the Publication Order, which was entered on an ex parte basis, improvidently granted the Application which, upon further review and consideration, fails to make a sufficient showing that Plaintiff exercised the required reasonable diligence to locate Meyer, and that Meyer could not with reasonable diligence be served in another matter other than by publication.

Moreover, as the Default was entered based on an assumption that service of the summons and complaint on Meyer by publication was valid pursuant to the Publication Order, the present record is also sufficient to show that Meyer’s failure to respond to the complaint did not represent a default based on deficiencies in the Application further discussed above, and the improvident granting of that Application pursuant to the Publication Order. The present record further reflects that the Default Judgments as to Meyer are also void for all reasons more fully discussed above. (American Express, supra, 199 Cal.App.4th at p. 387.)

For all reasons further discussed above, the Court will grant the present motion and order that the Default be set aside and vacated. The Court will also order that the Default Judgments, as to Meyer only, be set aside and vacated. In addition, for all reasons further discussed above, the Court will exercise its inherent authority to reconsider and vacate the Publication Order. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314.)

As the Court will grant the motion for the reasons discussed herein, it is not necessary, for present purposes, to reach or determine the remaining grounds asserted in the motion. Further, as to the objections of Meyer to the declarations of Plaintiff and DeClercq, as noted above, the Court considers only that information and evidence which is admissible and relevant to the present proceeding.

The Court also notes that the ruling herein leaves this case with no effective service of the summons or complaint on Meyer. The Court does not express any opinion as to what manner of service of the summons and complaint would be effective as to Meyer.