DC Comics v. Mark Towle et al

Filing 6

EX PARTE APPLICATION for Order for AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by plaintiff DC Comics. (Attachments: # 1 [PROPOSED] ORDER GRANTING PLAINTIFFS EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE)(Drey, Nicole)

5 J. Andrew Coombs (SBN 123881) andy@coombspc.com Nicole L. Drey (SBN 250235) nicole@coombspc.com J. Andrew Coombs, A Prof. Corp. 517 East Wilson Avenue, Suite 202 Glendale, California 91206 Telephone: (818) 500-3200 Facsimile: (818) 500-3201 6 Attorneys for Plaintiff DC Comics 1 2 3 4 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 DC Comics, ) ) Plaintiff, ) v. ) Mark Towle, an individual and doing ) ) business as Gotham Garage, and Does 1 - 10, inclusive, ) ) Defendants. ) ) ) ) ) Case No.: CV11-03934 RSWL (OPx) EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 19 EX PARTE APPLICATION 20 Plaintiff DC Comics (“DC”) (“Plaintiff”) seeks an order authorizing service of 21 the Summons in this matter upon Defendant Mark Towle, an individual and doing 22 business as Gotham Garage (“Defendant”) via publication and mail, pursuant to 23 Federal Rule of Civil Procedure 4(e) and California Civil Code of Procedure § 415.50. 24 This application is made in the interests of justice and pursuant to the Court’s power 25 to authorize publication as a means for service as provided by Federal Rules of Civil 26 Procedure, Rule 4(e)(1) and California Code of Civil Procedure § 415.50. This 27 i 28 _________________________________________________________________________________ PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 1 application is made on the grounds that Plaintiff has stated a cause of action against 2 Defendant, as shown by the Complaint on file, and Defendant cannot with reasonable 3 diligence be found and served in any other manner specified in California Code of 4 Civil Procedure §§ 415.10 through 415.40. 5 In addition, Plaintiff respectfully requests a sixty (60) day enlargement of time 6 to effect service of process within the Court’s broad discretion pursuant to Federal 7 Rules of Civil Procedure, Rule 6(b) to grant such an enlargement so long as the 8 request is made before the expiration of the period originally prescribed. 9 This application is based upon the Memorandum of Points and Authorities, the 10 Declarations filed in support, including Exhibits attached thereto, the Complaint and 11 any other papers and records on file in this action and upon such additional evidence 12 and arguments as may be presented at, or before, the hearing on Plaintiff’s 13 Application. 14 15 Despite Plaintiff not having yet served Defendant, Plaintiff has served notice of this Application on Defendant’s counsel on or about August 31, 2011. 16 17 Dated: August 31, 2011 J. Andrew Coombs, A Prof. Corp. 18 19 20 By: __/s Nicole L. Drey___________________ J. Andrew Coombs Nicole L. Drey Attorneys for Plaintiff DC Comics 21 22 23 24 25 26 27 ii 28 _________________________________________________________________________________ PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. INTRODUCTION 3 Defendant Mark Towle, an individual and doing business as Gotham Garage 4 (“Defendant”), is a manufacturer and distributor of unlicensed and counterfeit replica 5 Batman vehicles who will be rewarded for concealing his whereabouts and evading 6 service to avoid responsibility for his illegal actions if this application is not granted. 7 As alleged in the Complaint filed by Plaintiff DC Comics (“Plaintiff”), Defendant is 8 actively manufacturing, selling, offering for sale, renting, and distributing unlicensed 9 and counterfeit replica vehicles, and kits comprised of assorted parts and accessories, 10 which incorporate unauthorized reproductions of fanciful vehicles copyrighted and 11 trademarked by DC Comics from its world famous BATMAN property, including, but 12 not necessarily limited to the various BATMOBILE vehicles and all of their 13 BATMAN-related indicia and components within this Judicial District through his 14 fully interactive commercial Internet website operating under the domain name 15 GothamGarage.net. 16 Pursuant to Federal Rule of Civil Procedure 4(e)(1) and California Code of 17 Civil Procedure § 415.50, Plaintiff requests an order allowing service of process on 18 Defendant via publication and mail. Service by publication and mail is appropriate 19 and necessary in this case because the Defendant’s current residence is unknown. See 20 Declaration of Nicole L. Drey (“Drey Decl.”) at ¶¶ 3-7, Exhibits (“Exs.”) A-C. 21 Defendant has also failed to return an Acknowledgment of Service, leaving Plaintiff 22 with no other course for service than that by publication and mail. See id. at ¶ 8. 23 Further, although counsel for Defendant (Lawrence Zerner of Los Angeles, 24 California) has contacted Plaintiff’s counsel and acknowledged that his client is aware 25 of the filing of this action, he has specifically refused to accept service on Defendant’s 26 behalf or provide an executed Waiver of Service. Id. at ¶ 6. Plaintiff thus respectfully 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 1 1 submits that an order allowing service of process via publication and mail in this case 2 will benefit all parties and the Court by ensuring the Defendant receives immediate 3 notice of the pendency of this action and allowing this action to move forward 4 expeditiously. Absent the ability to serve the Defendant by publication and mail, 5 Plaintiff will almost certainly be left without the ability to pursue a remedy. 6 II. STATEMENT OF FACTS 7 Defendant owns, operates and manages a business producing custom cars 8 related to various television shows, movies and other fanciful and copyrighted works. 9 Complaint (“Compl.”) at ¶¶ 1, 20. Specifically, Defendant’s business manufactures, 10 sells, offers for sale, rents, and distributes unlicensed and counterfeit replica vehicles 11 and kits comprised of assorted parts and accessories which incorporate unauthorized 12 reproductions of fanciful vehicles copyrighted and trademarked by Plaintiff from its 13 world-famous BATMAN property, including, but not necessarily limited to, the 14 various BATMOBILE vehicles and all of their BATMAN-related indicia and 15 components (collectively “Infringing Product”). Id. at ¶¶ 1, 23, 25, 34. 16 On or about May 6, 2011, Plaintiff filed its complaint against Defendant. Drey 17 Decl. at ¶ 2. Thereafter, Plaintiff has attempted to serve Defendant via personal 18 service at five (5) different addresses on no less than nineteen (19) different occasions. 19 Id. at ¶¶ 3-4, 7, Exs. A, B & C. Plaintiff has also attempted to effect service through 20 an Acknowledgment of Service as well as Defendant’s counsel, Lawrence Zerner of 21 Los Angeles, but Defendant has refused both means. Id. at ¶¶ 5-6, 8. 22 Plaintiffs, therefore, demonstrate good cause for leave to serve Defendant by 23 publication and mail as well as an enlargement of time within which to effect service 24 of process. 25 26 2 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 1 2 3 4 III. ARGUMENT A. The Court May Authorize Service via Publication and Mail Pursuant to California Code of Civil Procedure § 415.50. Federal Rule of Civil Procedure 4(e)(1) states that service may be effected 5 pursuant to the law of the forum state. California law provides for service to be made 6 on out-of-state residents by either (1) personal service, (2) substituted service, (3) mail 7 and acknowledgment of receipt, (4) certified mail, or (5) publication. Cal. Code Civ. 8 Proc. § 415.10, et seq. Service by publication, however, requires a court order prior to 9 service attempts in order for service to be valid. See Cal. Code Civ. Proc. § 415.50(a). 10 Plaintiffs respectfully request such an order in order to effect service of process upon 11 the evasive Defendant. 12 13 14 1. Plaintiffs Have Demonstrated Reasonable Diligence and a Cause of Action Against Defendant. California Code of Civil Procedure § 415.50(a) provides that service may be 15 effected by publication, pursuant to court order, if “the party to be served cannot with 16 reasonable diligence be served in another manner specified in this article and … a 17 cause of action exists against the party upon whom service is to be made or he or she 18 is a necessary or proper party to the action.” 19 Plaintiff has repeatedly attempted to serve Defendant by either personal service 20 or substituted service. See Drey Decl. at ¶¶ 3-4, 7, Exs. A, B & C. These attempts 21 have proven unsuccessful. See id. Plaintiff has also attempted to secure service 22 through Defendant’s counsel, but counsel has refused to accept service on Defendant’s 23 behalf or sign a waiver of service. Id. at ¶ 6. Plaintiff has attempted to serve 24 Defendant by mail and acknowledgment as well, but as of the time of this filing, 25 Defendant has not returned the Acknowledgment of Service and is unlikely to do so 26 given his ongoing efforts to evade service and his counsel’s statements that Defendant 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 3 1 would not waive service. See id. at ¶ 8; see also id. at ¶¶ 3-7. At this point, there is no 2 other means of service available to Plaintiff other than service by publication. 3 Further, Plaintiff has demonstrated a valid cause of action against Defendant. 4 Plaintiff has alleged in its Complaint that Defendant’s manufacture and distribution of 5 unauthorized replica BATMOBILE vehicles infringes its copyrights and trademarks. 6 See Complaint, generally. Thus, a cause of action exists against Defendant such that 7 service by publication is proper. 8 9 10 2. Plaintiff Has Identified the Means Most Likely to Provide Actual Notice to Defendant of this Lawsuit. Although it is clear from the contacts initiated by Defendant’s counsel that 11 Defendant is aware of this action, this does not constitute “actual notice” under 12 California law. Pursuant to California Code of Civil Procedure § 415.50(b), “[t]he 13 court shall order the summons to be published in a named newspaper, published in 14 this state, that is most likely to give actual notice to the party to be served. If the party 15 to be served resides or is located out of this state, the court may also order the 16 summons to be published in a named newspaper outside this state that is most likely to 17 give actual notice to that party.” Plaintiff has determined that Defendant is most 18 likely residing in Santa Ana, California, or the immediately surrounding area. Drey 19 Decl. at ¶ 7. Thus, Defendant will most likely receive actual notice of this lawsuit 20 through a newspaper targeted to residents of Santa Ana, such as the Orange County 21 Register. Id. at ¶ 10. 22 Further, if a defendant’s address is ascertained before the expiration of the time 23 prescribed for publication of the summons, copies of the summons, complaint and 24 order for publication must be mailed to the defendant. Cal. Code Civ. Proc. § 25 415.50(b). While Plaintiff has not yet conclusively determined a physical or mailing 26 address for Defendant, Plaintiff has what it believes to be the last known address for 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 4 1 Defendant. Drey Decl. at ¶ 7. Further, Plaintiff has been contacted by counsel for 2 Defendant, whose address Plaintiff has been able to determine. Drey Decl. at ¶¶ 5-6. 3 Therefore, Plaintiff will send copies of the summons, complaint and order for 4 publication to Defendant at his last known address as well as at his counsel’s address 5 in addition to publishing the summons. 6 B. Within Which to Effect Service of Process 7 8 9 10 Plaintiff Demonstrates Cause Permitting an Enlargement of Time Plaintiff respectfully requests that, pursuant to Rule 6(b), the Court grant a sixty (60) day enlargement of time within which to effect service of Summons and Complaint. 11 “When an act may or must be done within a specified time, 12 the court may, for good cause, extend the time: (1) with or 13 without motion or notice if the court acts, or if a request is 14 made, before the original time or its extension expires . . .” 15 Fed. Rule Civ. P. 6(b). Plaintiff is to effect service of Summons and Complaint on 16 Defendant on or before September 3, 2011. Drey Decl. at ¶ 2. Accordingly, Plaintiff 17 submits its request for an enlargement of time before the expiration of the current 18 extension. 19 Moreover, “[d]istrict courts have broad discretion to extend time for service 20 under Rule 4(m). . . .[as] Rule 4’s 120-day time period for service ‘operates not as an 21 outer limit subject to reduction, but as an irreducible allowance.’” Efaw v. Williams, 22 473 F.3d 1038, 1041 (9th Cir. 2007) quoting Henderson v. United States, 517 U.S. 23 654, 661, 116 S. Ct. 1638, 134 L. Ed. 2d 880 (1996). Further, “‘Rule 4(m) explicitly 24 permits a district court to grant an extension of time to serve the complaint after that 25 120-day period.’” Id. quoting Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 26 2003) (“On its face, Rule 4(m) does not tie the hands of the district court after the 120- 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 5 1 day period has expired.”). Pursuant to Fed. R. Civ. P. 4(m), a district court is required 2 to grant an extension of time for service if good cause is shown and permitted to grant 3 such an extension even absent good cause. Mann, 324 F.3d at 1090, n. 2 citing 4 Henderson, 517 U.S. at 662. 5 Here, Plaintiff’s actions demonstrate good cause for granting an enlargement of 6 time to effect service upon the Defendant. First, Plaintiff has, in good faith, made 7 significant attempts to identify, locate and serve Defendant by September 3, 2011. 8 See Drey Decl. at ¶¶ 3-7. Since the filing of the Complaint, Plaintiff has attempted 9 service on Defendant at multiple addresses, on numerous occasions, and through 10 various methods, but Defendant is currently evading and/or refusing service. Id. 11 Plaintiff has employed the investigative efforts of a process server who has attempted 12 service on Defendant at five (5) different addresses and on no less than nineteen (19) 13 occasions, including leaving copies of the service packet with contacts of Defendant. 14 Id. at ¶¶ 3-4, 7. Further, Plaintiff was contacted by counsel for Defendant regarding 15 this matter, but despite several discussions, counsel for Defendant refuses to accept 16 service for Defendant or sign a waiver of service. Id. at ¶¶ 5-6. Additionally, Plaintiff 17 has attempted to secure an Acknowledgment of Service by mail, but Defendant has 18 thus far failed to return and is unlikely to return given the statements made by his 19 counsel. Id. at ¶ 8. Accordingly, Plaintiff’s efforts to effect service demonstrate its 20 good faith effort to diligently prosecute this Action and good cause for an enlargement 21 of time. 22 Second, Defendant will not suffer prejudice by virtue of the delayed service. 23 Pursuant to the Court’s Order, Plaintiff was to serve Defendant on or before 24 September 3, 2011. Drey Decl. at ¶ 2. Plaintiff requests only a brief extension within 25 which to effect service by publication and mail upon Defendant. Accordingly, this is 26 not a significant delay during which memories may fade or evidence be lost that 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 6 1 would prejudice Defendant, particularly when Defendant has notice of this lawsuit as 2 evidenced by Plaintiff’s communications with Defendant’s counsel. Id. at ¶¶ 5-6, 9; 3 but see Efaw v. Williams, 473 F.3d at 1041 (finding that an extraordinary delay of 4 seven years prejudiced Defendant). 5 Further, it is due to Defendant’s own actions that Plaintiff has not yet effected 6 service. Defendant’s conduct thus far has indicated he intends to continue to dodge 7 service in this matter. Defendant’s counsel has refused to accept service on 8 Defendant’s behalf, and counsel has also indicated that Defendant will vigorously 9 fight any attempt by Plaintiff to deem service as having been effected at one of the 10 previous addresses at which Plaintiff has left service of process. See Drey Decl. at ¶¶ 11 5-6. Further, Defendant has refused to return the Acknowledgment of Service sent to 12 Defendant’s last known address. Id. at ¶ 8. Defendant should not be allowed to 13 benefit from his attempts to evade service. See Fed. R. Civ. P. 4, Advisory 14 Committee Notes (“Relief may be justified…if the defendant is evading service”); 15 Motley v. Parks, 2001 U.S. Dist. LEXIS 12479, at *17 (C.D. Cal. July 23, 2001) 16 (same); see also Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 303 (7th 17 Cir. 1990) citing Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 942 (10th Cir. 18 1987) (refusal to accept mail constitutes evasion of service). 19 Finally, Plaintiff requires additional time to employ alternate means of service. 20 Personal service and substituted service attempts have proven ineffective thus far. See 21 Drey Decl. at ¶¶ 3-7. Plaintiff has also attempted service on Defendant by mail and 22 acknowledgment of receipt, but Defendant has thus far failed to return the 23 Acknowledgment. Id. at ¶ 8. Should the Court granted Plaintiff’s Ex Parte 24 Application and order service by publication, Plaintiff will be required to run the 25 publication for at least four weeks, pursuant to California Government Code § 6064. 26 7 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 1 Service is then deemed effective on the twenty-eighth day of publication. Id.; Cal. 2 Code Civ. Proc. § 415.50(c). Thus, Plaintiff has clearly demonstrated good cause for an enlargement of time 3 4 within which to effect service of process on Defendant. 5 IV. CONCLUSION 6 For the foregoing reasons, Plaintiff respectfully requests this Court grant the 7 present motion to serve Defendant by publication and mail. Additionally, Plaintiff 8 respectfully requests this Court grant a sixty (60) day extension of time within which 9 to effect service of process. 10 11 12 13 14 Dated: August 31, 2011 J. Andrew Coombs, A Prof. Corp. By: __/s Nicole L. Drey___________________ J. Andrew Coombs Nicole L. Drey Attorneys for Plaintiff DC Comics 15 16 17 18 19 20 21 22 23 24 25 26 8 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) DECLARATION OF NICOLE L. DREY 1 2 I, NICOLE L. DREY, declare as follows: 3 1. I am an attorney at law, duly admitted to practice before the Courts of the 4 State of California and the United States District Court for the Central District of 5 California. I am an attorney for Plaintiff DC Comics (“DC”) (“Plaintiff”) in an action 6 styled DC Comics v. Mark Towle, et al., Case Number CV11-03934 RSWL (OPx). 7 Except as otherwise expressly stated to the contrary, I have personal knowledge of the 8 following facts and, if called as a witness, I could and would competently testify as 9 follows. 10 2. I am informed and believe that Plaintiff filed its Complaint on or about 11 May 6, 2011. Pursuant to Rule 4(m), Plaintiffs are to serve Defendant on or before 12 September 3, 2011. 13 3. I am informed and believe that since the filing of the Complaint until the 14 filing of this ex parte request, my office has spent a considerable amount of time and 15 resources tracing all known contact information for Defendant, including extensive 16 research on Lexis-Nexis and by other means to determine any and all possible aliases, 17 dba’s, email addresses, websites and physical locations. In connection therewith, I am 18 informed and believe that my office identified three (3) potential addresses for 19 Defendant – (1) ADDRESS A in Lake Elsinore, California; (2) ADDRESS B in 20 Corona, California; and (3) ADDRESS C in Temecula, California. I am informed and 21 believe that my office determined ADDRESS A to be the most likely address for 22 Defendant but provided the process server with all three addresses. 23 4. I am informed and believe that the process server attempted service at 24 ADDRESS B on one occasion but noted that the address was vacant. I am informed 25 and believe that the process server attempted service at ADDRESS C on two separate 26 occasions. During the second attempt, the process server was informed by the owner 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 9 1 that Defendant no longer resided at that address. Attached hereto as Exhibit A is a 2 true and correct copy of the process server’s diligence report. I am informed and 3 believe that the process server attempted service at ADDRESS A on four (4) separate 4 occasions. Specifically, on or about June 1, 2011, the process server attempted to 5 serve Defendant at ADDRESS A. I am informed and believe that when the process 6 server asked for Defendant, an unidentified male stated that Defendant was not home. 7 I am further informed and believe that the process server then sub-served the 8 unidentified male. Attached hereto as Exhibit B is a true and correct copy of the 9 process server’s diligence report. 10 5. On or about June 9, 2011, I received a telephone call from a Larry 11 Zerner, who purported to represent Defendant. Mr. Zerner stated that ADDRESS A 12 belonged to Defendant’s ex-wife and that Defendant had never lived at that address. I 13 noted to Mr. Zerner that the process server had asked the unidentified male who 14 answered the door if Defendant was home, and the male had answered no. Mr. Zerner 15 stated that he would look into the statements. I also asked if Mr. Zerner would be 16 willing to accept service or if Defendant would be willing to sign a waiver of service, 17 and Mr. Zerner stated that he would get back to me. 18 6. On or about June 20, 2011, I again spoke with Mr. Zerner. Mr. Zerner 19 stated that Defendant disputed the process server’s account of statements made by the 20 unidentified male at ADDRESS A. Mr. Zerner stated that Defendant would 21 vigorously fight any attempt by Plaintiff to claim that service had been properly made 22 at ADDRESS A. Mr. Zerner also stated that he would not accept service for 23 Defendant nor would Defendant sign a waiver of service unless Plaintiff agreed to a 24 license for Defendant’s actions. 25 7. I am informed and believe that my office continued to conduct significant 26 research into the whereabouts of Defendant. I am informed and believe that most of 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 10 1 my office’s research continued to point to ADDRESS A as belonging to Defendant. I 2 am further informed and believe that my office hired an investigator to research the 3 current address for Defendant. I am informed and believe that the investigator 4 discovered an additional potential addresses for Defendant – ADDRESS D in Santa 5 Ana, California, which appeared to be the current and most up-to-date address for 6 Defendant. I am informed and believe that my office also conducted additional 7 research and identified an alternative apartment number at the same building in Santa 8 Ana, California – ADDRESS E. I am informed and believe that my office then 9 provided these addresses to the process server who attempted service on both 10 apartments on multiple occasions. I am informed and believe that the process server 11 attempted service on ADDRESS D on at least three (3) separate occasions. On the 12 third attempt, I am informed and believe that the process server was informed by the 13 occupant that Defendant was unknown at that address. I am further informed and 14 believe that the process server attempted service on ADDRESS E on no less than nine 15 (9) separate occasions. I am informed and believe that on the last attempt, on or about 16 August 2, 2011m the process server spoke with a man named “Charles” who stated 17 that Defendant hadn’t lived in the complex for years. I am informed and believe that 18 the process server left a courtesy copy of the summons and complaint with Charles. 19 Attached hereto as Exhibit C is a true and correct copy of the process server’s 20 supplemental diligence report. 21 8. Having exhausted the addresses for personal service, I am informed and 22 believe that, on or about August 18, 2011, my office mailed the Summons, Complaint 23 and an Acknowledgment of Service to Defendant at ADDRESS D, the address 24 identified by Plaintiff’s hired investigator as being Defendant’s current residence. 25 Pursuant to California Code of Civil Procedure § 415.30, Defendant is to return the 26 Acknowledgment by September 17, 2011. I am informed and believe that Defendant 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx) 11 1 has not yet returned the Acknowledgment. I am also informed and believe it is 2 unlikely Defendant will return the Acknowledgment given Defendant’s counsel’s 3 statements that Defendant would not sign a waiver. 4 9. The requested Order granting Plaintiff’s Application for an Order 5 Authorizing Service of Process on Defendant by Publication and Mail is Plaintiff’s 6 only remaining method available to effectively serve Defendant. I am informed and 7 believe that Defendant has notice of this action, based on the conversations with 8 Defendant’s counsel, but without the relief requested herein, Defendant will continue 9 to deliberately evade service in order to avoid responsibility for her illegal actions. 10 10. Should the Order be granted, Plaintiff will publish the Summons in the 11 Orange County Register. According to my office’s research, Defendant is a resident 12 of Santa Ana, California, and thus the Orange County Register is the “newspaper, 13 published in this state, that is most likely to give actual notice to the party to be 14 served,” pursuant to California Code of Civil Procedure § 415.50. Plaintiff will run 15 the publication once a week for four successive weeks, pursuant to California 16 Government Code § 6064. 17 18 19 I declare under penalty of perjury that the foregoing is true and correct under the laws of the United States of America. Executed this 31st day of August, 2011, at Glendale, California. 20 21 _____/s Nicole L. Drey______________ NICOLE L. DREY 22 23 24 25 26 12 27 _________________________________________________________________________________ 28 PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. CV11-03934 RSWL (OPx)                               EXHIBIT “A”   EXHIBIT A PAGE 13 EXHIBIT A PAGE 14 EXHIBIT A PAGE 15                               EXHIBIT “B”   EXHIBIT B PAGE 16 EXHIBIT B PAGE 17 EXHIBIT B PAGE 18 EXHIBIT B PAGE 19                               EXHIBIT “C”   EXHIBIT C PAGE 20 EXHIBIT C PAGE 21 EXHIBIT C PAGE 22 EXHIBIT C PAGE 23 PROOF OF SERVICE I, the undersigned, certify and declare that I am over the age of 18 years, employed in the County of Los Angeles, and not a party to the above-entitled cause. I am employed by a member of the Bar of the United States District Court of California. My business address is 517 East Wilson Avenue, Suite 202, Glendale, California 91206. On August 31, 2011, I served on the interested parties in this action with: • • EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [PROPOSED] ORDER GRANTING PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER AUTHORIZING SERVICE OF PROCESS ON DEFENDANT BY PUBLICATION AND MAIL AND REQUEST FOR ENLARGEMENT OF TIME WITHIN WHICH TO EFFECT SERVICE in support for the following civil action: Warner Bros. Entertainment Inc. v. M. Towle, et al. by placing a true copy thereof in an envelope to be immediately sealed thereafter. I am readily familiar with the office’s practice of collecting and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on the same day with postage thereon fully prepaid at Glendale, California in the ordinary course of business. I am aware that on motion of the party served, service presumed invalid if postal cancellation date or postage meter is more than one day after date of deposit for mailing in affidavit. Larry Zerner Zerner Law 1801 Century Park East, Suite 2400 Los Angeles, CA 90067 Place of Mailing: Glendale, California Executed on August 31, 2011, at Glendale, California /s/ Jeremy Cordero Jeremy Cordero