United States of America v. James E. Frank, Trustee of the James E. Frank and Catherine Frank Trust et al

Filing 14

ORDER granting 7 Motion for Service by Publication and for Extension of Time for Service: Plaintiff SHALL FILE proof of service of such process not later than 4/27/12. Signed by Judge Janis L. Sammartino on 1/23/12. (lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

CASE NO. 11-CV-2010 JLS (JMA)
ORDER: GRANTING
PLAINTIFF’S MOTION FOR
LEAVE TO SERVE BY
PUBLICATION AND FOR
EXTENSION OF TIME FOR
SERVICE

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Plaintiff,
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vs.

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JAMES E. FRANK, TRUSTEE OF THE
JAMES E. FRANK AND CATHRINE
FRANK TRUST dated 10-23-1969 together
with supplements and amendments thereto
aka THE FRANK FAMILY TRUST, by its
unidentified trustee, CATHRINE ANN
SHIRLEY, and DAN McALLISTER, San
Diego County Treasurer/Tax Collector,

(ECF No. 7)

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Defendants.
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Presently before the Court is Plaintiff United States of America’s motion to serve process

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on Defendant by publication and for extension of time to complete service on Defendant The

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Frank Family Trust (“the Trust”). (Motion, ECF No. 7.) Defendants have not opposed. The

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motion hearing set for January 26, 2012, is HEREBY VACATED, and the matter is taken under

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submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). Having considered the

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parties’ arguments and the law, the Court GRANTS Plaintiff’s motion.

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//

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SERVICE BY PUBLICATION
Plaintiff filed this action to foreclose the United States’ federal tax liens and/or judgment

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lien against certain real property in El Cajon, California pursuant to 26 U.S.C. §§ 7401, 7402. As

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the record title holder of the subject property, the Trust was named as a defendant in this case.

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(Mem. ISO Motion 2.) Plaintiff served Cathrine Ann Shirley, primary beneficiary of the Trust

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along with her children, believing her to be the successor trustee to her mother, Cathrine Frank.

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(Id.) Plaintiff then learned, through diligent effort, that the successor trustee was La Jolla Bank

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and Trust Company. (Id.) However, the bank, ultimately acquired by Bank of America, did not

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consent to serve as trustee, leaving the successor trustee of the Trust undetermined. (Id. at 3.) For

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these reasons, Plaintiff seeks leave to serve process by publication on the successor trustee of the

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Trust. (Id. at 5.)

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Service of process may be accomplished by “following state law for serving a summons in

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an action brought in courts of general jurisdiction in the state where the district court is located or

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where service is made.” Fed. R. Civ. P. 4(e)(1). California law provides for service by

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publication when “upon affidavit it appears to the satisfaction of the court in which the action is

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pending that the party to be served cannot with reasonable diligence be served in another manner

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specified in this article,” and that the party to be served has or claims an interest in real property

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subject to the action. Cal. Civ. Proc. Code § 415.50. Service of process must be “reasonably

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calculated, under all the circumstances, to apprise interested parties of the pendency of the action

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and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank &

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Trust Co., 339 U.S. 306, 314 (1950). Further, the “means employed must be such as one desirous

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of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315.

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Here, Plaintiff has made several unsuccessful attempts to serve the successor trustee.

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(Mem. ISO Motion 2-3.) In fact, Plaintiff believes there is no successor trustee. (Id. at 3.)

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Plaintiff notes that Cathrine Ann Shirley, the sole beneficiary of the Trust under California law as

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well as the primary named beneficiary of the Trust, has already been served in her individual

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capacity and has actual notice of this lawsuit. This ameliorates the concern that individuals with

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the underlying interest held by the Trust are unaware an action has been filed that may affect their
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interest held by the Trust.1 Without the appointment of a successor trustee, Plaintiff’s declaration

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satisfies the Court that the successor trustee cannot “with reasonable diligence be served in another

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manner” as specified in California Code of Civil Procedure section 415.50.2
EXTENSION OF TIME TO COMPLETE SERVICE OF PROCESS

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A federal court “must extend the time for service” if the plaintiff shows good cause. Fed.

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R. Civ. P. 4(m). Here, Plaintiff has served process on all known parties and has pursued

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identification of the unknown Defendant successor trustee for service. (Mem. ISO Motion 2–3.)

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Good cause appearing, Plaintiff’s request for an extension of time to complete service of process is

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GRANTED.

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CONCLUSION

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For the reasons stated above, the Court GRANTS Plaintiff’s motion. Plaintiff shall

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publish the summons in a newspaper of general circulation in San Diego, California and El Cajon,

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California pursuant to California Code of Civil Procedure section 415.50. Publication of notice

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shall be once a week for four consecutive weeks. Cal. Gov. Code § 6064. If the trustee’s identity

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and address are ascertained before expiration of this twenty-eight day period of notice, Plaintiff

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shall mail a copy of the summons, the complaint, and this Order forthwith to that party. See Cal.

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Civ. Proc. Code. § 415.50(b). Plaintiff SHALL FILE proof of service of such process not later

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than April 27, 2012.

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IT IS SO ORDERED.
DATED: January 24, 2012

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Honorable Janis L. Sammartino
United States District Judge

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Plaintiff states that Cathrine Ann Shirley has indicated she would have no objection to being
appointed as the successor trustee. (Mem. ISO Motion 2 n.1.) The Court notes that, under California
law, courts have discretion to take any action necessary to dispose of judicial proceedings concerning
trusts, including the appointment of a temporary trustee to administer the trust in whole or in part.
See, e.g., Cal. Prob. Code § 17206. However, the Court currently does not have enough information
about the Trust to consider appointment of a temporary trustee, nor has any party requested such
action be taken. If such a motion is made, it should be properly supported and include the Deed of
Trust and the asserted basis of the Court’s authority to appoint a trustee in the requested capacity.
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Under California law, Plaintiff’s declaration has the same legal force as an affidavit. Cal.
Civ. Proc. Code § 2015.5.
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