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.
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