Tuesday, December 2, 2014

Defendant Gets Too Cute Ducking Service, Relief from Default Denied

Giorgio v. Synergy Mgmt. Grp., LLC, No. B248752 (Nov. 6, 2014)

Defendant allegedly submitted more than $250,000 in false expense reports to plaintiff. When it sued to recover, plaintiff made dogged efforts to serve defendant. They included personal service in an airport while defendant was traveling, service by various forms of mail in Amsterdam, hiring Dutch private eyes, various efforts at mail service at an address in LA—an address the USPS confirmed was a good address for the defendant—a stakeout at that same address, and service of the papers on attorneys who had previously represented the defendant in connection with the dispute. When of all that came to no avail, plaintiff moved for an obtained leave for service by publication, which the trial court granted. After plaintiff published the summons in the LA Daily Journal and defendant still did not respond, plaintiff put the defendant into default and moved for default judgment.

Five days later, the defendant—heretofore unreachable, but suddenly incredibly responsive—filed a motion for relief from default under Code of Civil Procedure § 473(b). He submitted a declaration attesting that he had not lived or worked in California since 2009. The trial court, finding that the defendant made a deliberate effort to skip out on service, declined to relieve him from default and entered a $250,000 default judgment.

The court of appeal explains that service by publication is a last resort after the others means have been exhausted and the defendant cannot be served otherwise with reasonable diligence. As the court recognizes, since nobody actually reads the notices in the back of the Daily Journal, service by publication is a fiction. “[T]here is really little expectation that a defendant so served will in fact acquire actual notice from the publication.”

In any event, the court finds that substantial evidence support the trial court’s finding that the defendant couldn’t be served personally or by mail despite reasonable diligence. Plaintiff submitted credible evidence attributing the LA address to the defendant. And because evidence showed defendant
s address in LA, publication in an LA newspaper was sufficient to meet the publication by service requirements.


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