A judge has denied a request by a coronavirus testing company to permit substitute service on Los Angeles County Sheriff Alex Villanueva, despite the firm’s claim that a process server has been unable to serve him personally with a petition seeking to do discovery ahead of the potential filing of a lawsuit against him for defamation.
Los Angeles Superior Court Judge Elaine Lu issued her ruling Friday in the petition brought Jan. 21 by Fulgent Genetics Inc. and its subsidiary, Fulgent Therapeutics LLC.
The firms allege Villanueva, in a Nov. 29 letter to the Board of Supervisors and published on the sheriff’s department website, falsely stated that the FBI warned him against using Fulgent’s COVID-19 testing services because of “concerning information” the company would provide to China the DNA data of county employees. The letter referred to an FBI briefing Villanueva said took place the day after Thanksgiving. Lu ruled after hearing arguments that Fulgent’s request for substitute service was not supported by law.
“There is no statutory or other legal authority for the relief that (Fulgent) seeks, which is in essence, a judicial finding that (Fulgent) has satisfied its due diligence requirement in advance of substitute service,” a minute order prepared by Lu’s clerk stated.
Fulgent lawyers argued in court papers filed Thursday that Villanueva has evaded personal service of the Jan. 21 petition and that his personal lawyer has refused to accept substitute service on his behalf, so they wanted a judge to allow service by publication or other alternative means because Villanueva is a “necessary or proper party” to the action.
“A rich irony, given that (Villanueva), in his professional capacity as sheriff, oversees the service of court documents on the county’s reluctant defendants,” Fulgent lawyers stated in their court papers. “(Villanueva’s) seemingly deliberate evasion of service leaves Fulgent with no option other than to seek relief from this court.
“Simply, the chief law enforcement officer of the county, who has been accused of serious wrongdoing, has taken the unfortunate position that he is above the law.”
Fulgent first tried to serve Villanueva at his office late Monday morning, but the process server was not allowed into the building and was told it was closed, according to the Fulgent attorneys’ court papers. The process server was told Villanueva could be at the nearby County Courthouse, but when the process server went there, he was told the sheriff’s whereabouts were unknown, the Fulgent lawyers argued in their court papers.
The process server went to Villanueva’s home that night and spoke with a woman who refused to confirm or deny whether he lived there, so the process server returned to the residence Tuesday morning and heard dogs barking, but nobody answered the door, according to the Fulgent attorneys’ court papers. Future attempts to serve Villanueva at work or at his home through Wednesday also were unsuccessful, the Fulgent lawyers stated in their court papers.
“(Villanueva’s) refusal and evasion of service, if allowed, will deprive Fulgent of its right to petition this court to conduct pre-litigation discovery pursuant to California law,” the Fulgent attorneys stated in their court papers.
According to the petition, Villanueva made the China claim and other false statements about Fulgent even though the FBI neither accused the company of wrongdoing nor alluded to any evidence Fulgent provided or would provide private medical information to China.
Villanueva knew the statements he published about Fulgent were false five days later, and the county emailed its employees stating, “The county has no evidence from any law enforcement agency or any other source that any County employee data has been or will be shared with the Chinese government,” according to the petition. Villanueva’s statements were shared on social media, including those of some anti-vaccine activists, and led to a protest against Fulgent on Dec. 14, the petition states. In addition, a window was shot out at Fulgent’s Temple City headquarters, according to the petition.
The Fulgent petition seeks a court order directing Villanueva to produce any personal and sheriff’s department-issued cellphone text messages and emails related to or discussing Fulgent, the publication of the letter and any involvement he had with the coordination and scheduling of the FBI briefing.
The company also wants Villanueva to sit for a four-hour deposition. No hearing date has been set for those requests.