Thursday, September 24, 2009
C.A. Upholds Default in Malpractice Action Against Local Attorney
Substituted Service on Employee of Private Postal Facility Held Valid by Appellate Panel
By Sherri M. Okamoto, Staff Writer
This district’s Court of Appeal has upheld a more than-$400,000 default judgment in a malpractice action against a Santa Monica attorney, rejecting her claim that subsituted service on an employee of the business where she kept her private postal box was inadequate to establish jurisdiction.
Los Angeles Superior Court Judge Michael L. Stern properly exercised his discretion in denying Lisa M. Howard’s motion to vacate based on her challenge to the service, Div. Two held in a Sept. 1 decision ordered published Tuesday.
Howard represented Barbara Hearn and Thierry Didelot in an action to set aside an allegedly fraudulent conveyance and collect on an unpaid $245,000 judgment, but they claimed Howard’s negligence in handling the matter damaged them in the amount of the uncollected judgment.
In May 2007, Hearn and Didelot filed a malpractice complaint against Howard, Los Angeles attorney Stewart Richlin and Redmond attorney Sunitha Anjilvel.
Hearn and Didelot later dismissed Anjilvel from the action and entered into a nominal settlement with Richlin, while Howard responded to the complaint with a nine-page letter proposing a settlement, comprised of a dismissal of the complaint. She indicated that the offer would be revoked if she were forced to file a responsive pleading.
Hearn and Didelot rejected the offer and upon receiving no further communication from Howard sent a process server to the address on her letterhead, which turned out to be a post office box rental store.
According to a declaration of due diligence submitted by the process server, three attempts were made to personally serve Howard at the address, which also appeared on the State Bar’s website. During the third attempt, the process server said he left the summons and complaint with the store clerk. Copies of the documents were also mailed to Howard at the store address.
However, by Sept. 18, 2007 Howard still had not filed a responsive pleading, so Hearn and Didelot served her with a request for entry of default by mail.
The next day, Howard sent a letter to Hearn and Didelot’s attorney denying that she had been served in any “authorized fashion.”
Hearn and Didelot’s attorney responded via e-mail that same day, indicating that substituted service was effectuated Aug. 2 and advising Howard that a request to enter default had been submitted. The trial court entered the default Sept. 20.
Howard appeared at the default prove-up hearing that November, where she received another copy of the complaint. A second proof of service was subsequently filed, indicating that Howard had been personally served at the hearing.
The trial court entered judgment in favor of Hearn and Didelot, awarding $432,090—comprised of $245,000 for the original uncollected judgment, $176,090 in interest and $15,000 for attorney fees paid to Howard.
Contending that she had not been properly served until the November hearing, Howard moved to vacate the default but Stern denied her motion.
On appeal, Justice Kathryn Doi Todd explained that Howard had been properly served at the post office box rental store pursuant to Ellard v. Conway (2001) 94 Cal.App.4th 540, which upheld a substituted service of process on a private post office store employee.
Citing Ellard, Doi Todd said the purpose of the substitute service of process procedure “is to permit service to be completed upon a good faith attempt at physical service on a responsible person,” and so “[s]ervice must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.’”
Doi Todd reasoned that service on the clerk at the store where Howard rented a post office box achieved this purpose. She further noted that the plan language of the statute also authorizes substitute service at a defendant’s usual mailing address, which includes a private or commercial post office box.
Although a declaration of due diligence attached to the proof of service provided it was executed under penalty of perjury under the laws of Arizona, not California, Doi Todd said that the technical defect was harmless since it was attached to, expressly referenced in, and filed with the proof of service, which was properly executed under penalty of perjury under the laws of California.
The justice added that Howard’s unsupported, subjective belief she had not been served until the November hearing failed to demonstrate that the default judgment was entered as result of mistake, inadvertence, surprise or excusable neglect.
Joined by Justices Judith Ashmann-Gerst and Victoria M. Chavez, Doi Todd upheld the award of damages, but because neither the body of the complaint nor the prayer for relief identified the amount of attorney fees being sought as $15,000, the court ordered that the amount be stricken.
A graduate of UCLA and the University of West Los Angeles Law School, Howard was admitted to practice in 1982 but was suspended in 1985 and 2007 for failing to pay membership dues. She was also suspended in 1990 for six months for misappropriating $1,300 in client funds.
Howard represented herself while Howard M. Fields of Parker Shumaker Mills LLP represented Hearn and Didelot. Fields could not be reached for comment, but Howard told the MetNews, “I have a lot of options” in responding to the decision.
She maintained that she had not been served until the November 2007 hearing when she “was served, in open court, in front of the judge, at the judge’s direction,” and insisted that such personal service waived the default.
The case is Hearn v. Howard, 09 S.O.S. 5737.
Copyright 2009, Metropolitan News Company