Calvert v. al Binali, No. B282984 (D2d8 Dec. 4, 2018)
A Plastic Surgeon thinks a former Patient anonymously defamed him on the Internet. He’s really not sure. But that doesn't stop him from suing Patient for defamation. He has trouble serving process, however. Surgeon makes a number of attempts to serve Patient at some address in the OC that she’s loosely affiliated with. Someone there mentions that Patient is actually Canadian. Surgeon, however, makes no effort to serve in Canada.
In any event, sooner or later, the trial court decides Surgeon’s done enough to qualify for service by publication in the OC Register. The notices, however, get published in the Laguna News-Post, which is some local outfit owned by the Register, but with 1 percent of the circulation. Surgeon ultimately gets $2 million default judgment and starts lurking around the Great White North to enforce it.
When Patient gets word of that, she moves to vacate the judgment under Code of Civil Procedure § 473(d) as facially void. A judgment can be vacated under § 473(d) when a jurisdictional defect is apparent from the face of the record. In the case of a default judgment, the record includes the judgment itself, as well as the service proof docs, which are necessary to show that the trial court had personal jurisdiction over the defaulted defendant.
Problem here is that the Court’s order for publication in the OC Register wasn’t followed. Service by publication is not favored, so any failure to strictly comply with the rules and the Court’s order renders service, and thus personal jurisdiction, inadequate. Which is the case here.
Reversed.
Showing posts with label service by publication. Show all posts
Showing posts with label service by publication. Show all posts
Wednesday, December 5, 2018
Wednesday, December 9, 2015
In Rem
Buchanan v. Soto, No. D065652 (D4d1 Nov. 6, 2015)
Wife, facing a collections action, transferred some marital property to Husband’s separate ownership. Plaintiff won the collection case and then sued Husband and Wife for fraudulent conveyance. She had some trouble serving Husband, who had allegedly been deported to Mexico before the case was filed. Wife unconvincingly claimed not to know Husband’s address there. After several attempts to serve Husband at the pre-deportation residence, the court permitted service by publication. Husband defaulted and Plaintiff ultimately won a judgement against both Wife and (defaulted) Husband, with the court finding that the property had been fraudulently transferred by Wife to avoid collections.
Wife, facing a collections action, transferred some marital property to Husband’s separate ownership. Plaintiff won the collection case and then sued Husband and Wife for fraudulent conveyance. She had some trouble serving Husband, who had allegedly been deported to Mexico before the case was filed. Wife unconvincingly claimed not to know Husband’s address there. After several attempts to serve Husband at the pre-deportation residence, the court permitted service by publication. Husband defaulted and Plaintiff ultimately won a judgement against both Wife and (defaulted) Husband, with the court finding that the property had been fraudulently transferred by Wife to avoid collections.
Wednesday, June 3, 2015
Service by Birdcage-Liner
In re Establishment of The Press-Enterprise as a Newspaper of General Circulation, (D4d2 May 7, 2015)
When the law refers to something as “constructive,” it basically means it’s a lie. That’s how service by publication works. You try really hard to serve someone, and then, instead of just giving up, you publish a notice in some publication that nobody actually reads and get your default judgment. There is no real service. It’s the effort that counts.
When the law refers to something as “constructive,” it basically means it’s a lie. That’s how service by publication works. You try really hard to serve someone, and then, instead of just giving up, you publish a notice in some publication that nobody actually reads and get your default judgment. There is no real service. It’s the effort that counts.
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.
Affirmed.
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.
Affirmed.
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