Thursday, December 6, 2018
Court of Appeal:
Where Judge Authorizes Service-by-Publication, Opinion Says, Specification of Newspaper In Which the Notice Is to Appear Excludes Prospect of Valid Publication Elsewhere
By a MetNews Staff Writer
JAY W. CALVERT
The Court of Appeal has stripped a plastic surgeon and his professional corporation of a $1.9 million default judgment because the summons was published in a newspaper other than the one specified in the Superior Court’s order for publication.
That deviation, Acting Presiding Justice Laurence D. Rubin of Div. Eight said in an opinion filed Tuesday, nullified the service by publication, rendering the judgment void.
His opinion reverses the denial by Los Angeles Superior Court Judge Edward B. Moreton Jr. of a motion by defendant Rima Al Binali to vacate the default judgment against her that was secured in 2014 by Beverly Hills/Newport Beach plastic surgeon Jay W. Calvert and his corporation. The action, for defamation, was based on Binali’s anonymous negative review of the doctor’s performance posted on ripoffreport.com.
Moreton had ordered publication of the summons in the Orange County Register, a daily publication, upon a showing that diligent efforts to effect personal or substitute service had failed. However, the newspaper’s staff proceeded to cause publication—once a week for four weeks, as statutorily required with respect to publication of summonses—in the Laguna News-Post, one of the Register’s community weeklies.
The judge found invalid the initial publication of the summons in July and August of 2012 because a statement of damages was not included, but ordered entry of default following a republication, which included the statement, took place in November 2012.
The $1,940,506 award, rendered following a prove-up, included $80,900 in attorney fees and costs.
Al Binali moved for an order setting aside the default judgment on Feb. 6, 2017, following efforts to enforce the judgment in Canada, where she had moved in 2011, the year before her name was substituted for that of a Doe defendant after her identity was ascertained.
Rubin, who is awaiting confirmation on Dec. 21 by the Commission on Judicial Appointments as presiding justice of Div. Five, said service by publication requires strict adherence to requirements of Code of Civil Procedure §415.50. He wrote:
“Section 415.50 states that the ‘court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.’…Publication in the newspaper named by the court is essential, as it ensures notice is given via the periodical that the trial court finds most likely to give the defendant notice. Plaintiffs’ failure to comport with the court’s publication requirements renders the judgment void on its face.”
Calvert and his corporation argued that the 1903 California Supreme Court decision in Columbia Screw Co. v. Warner Lock Co. recognizes that substantial performance in the publication of summonses suffices. (It says: “The service of a summons by publication is in derogation of the common law, and in order to obtain such constructive service, the statute must be substantially complied with and its mandates observed.”)
That case, Rubin pointed out, concerned only the sufficiency of an affidavit.
“The case did not address compliance with section 415.50’s requirements for service by publication, and subsequent cases…reject substantial compliance in this context,” he said.
The plaintiffs argued that even though Moreton ordered publication in the Register, he “ratified the means of publication when he approved entry of default and issued the subsequent judgment.” Rubin responded:
“Plaintiffs cite no case law to support this theory and we have not found any….We find plaintiffs’ ratification argument particularly unpersuasive, given that plaintiffs admitted at oral argument they did not point out to the court at the service and prove up hearings that the publication was in the Laguna News-Post, rather than the Orange County Register. We cannot infer ratification of conduct that was never brought to the trial court’s attention.”
“Certainly plaintiffs could have asked the trial court for permission to publish in the Post-News. The court could have modified its previous order. But, what plaintiffs could not do is raise this ratification argument for the first time on appeal. Under these circumstances, we can only speculate on what the trial court might have done if plaintiffs had requested to publish in the unauthorized newspaper.”
(The News-Post was adjudicated in 1967 by the Orange Superior Court as a newspaper of general circulation, eligible to publish legal notices.)
Not Their Fault
It was the Register, not they, that decided to shift publication to the News-Post, the plaintiffs underscored. Rubin found that factor to lack significance, explaining:
“The publisher’s failure to print the summons in the authorized periodical did not relieve plaintiffs of their duty to comply with the court’s order for service by publication. Tellingly, plaintiffs did not correct the error or demand compliance from the publisher when they printed the summons for a second time to include the statement of damages. A final point on service by publication in a newspaper not authorized by the court: A party may not with impunity simply ignore a court order even for professed ‘good’ reasons.”
The case is Calvert v. Al Binali, 2018 S.O.S. 5777.
Cyrus S. Naim of Beverly Hills represented Al Binali. Bernadette M. Stafford of the Law Offices of Pasquale P. Caiazza in Orange argued for Calvert and Jay Calvert, M.D., a professional corporation.
Orange County Prosecution
The Orange County District Attorney’s Office in November 2013 charged Calvert with one felony count each of medical insurance fraud, manufacturing documents, and perjury. It dropped the prosecution in April 2014 after the doctor agreed to pay restitution to patients in an amount that was not disclosed.
It was alleged that in 2009, he performed unauthorized and damaging surgery on a man—identified as “John Doe”—in addition to the rhinoplasty (“nose job”) he had requested, billing his insurance company for the unnecessary procedures in an amount exceeding $40,000, and fabricating documents to support the fraudulent claims. Prosecutors also charged that Calvert lied in a deposition when sued by Doe.
The Register quoted Orange County Deputy District Attorney Shaddi Kamiabipour as saying of the dismissal of charges:
“We’re not dealing with a situation of me dismissing the case because he’s innocent. The reason it was done is it appeared to be a reasonably isolated situation, and he agreed to make corrections. And he is not necessarily a bad surgeon.”
Copyright 2018, Metropolitan News Company