Metropolitan News-Enterprise


Wednesday, August 7, 2019


Page 3


Court of Appeal:

Faulty Declaration Seeking Order for Publication Voids Judgment


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal has held that a declaration under penalty of perjury in support of an order for publication of a summons that failed to recite that it was executed in California and that it was signed under the laws of California was fatally defective, rendering an ensuing $1.5 million default judgment void.

The declaration begins, “I declare under the penalty of perjury,” but does not observe other requisites of Code of Civil Procedure §2015.5, the opinion points out. That section says that a declaration “may be in substantially the following form,” providing that if executed within the state, it must say, precisely or in substance: “I certify (or declare) under penalty of perjury that the foregoing is true and correct.”

It goes on to say that wherever executed, the declaration must convey:

“I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

Fatal Stabbing

The mother, wife and daughters of Richard Ortiz, who was stabbed to death at a rave in Victorville, in 2000 sued (among others) the owners of the venue, Carl Schou and Nellie Schou. In seeking an order for publication of a summons, they provided an application signed under penalty of perjury by their lawyer, Edward Acosta (now on inactive bar status), who incorporated by reference a document executed by investigator Steven Figueroa which purported to be under penalty of perjury but did not comport, under Monday’s Court of Appeal decision, with §2015.5.

The unpublished opinion takes issue with the actions of three San Bernardino Superior Court judges: John M. Tomberlin, who ordered service by publication; Donald R. Alvarez, who granted a default judgment; and Gilbert G. Ochoa, who denied a motion to vacate the default judgment.

It was Ochoa’s decision that was reviewed. The Schous moved to vacate the judgment in 2018, vowing that they had just become aware of it, and Ochoa denied their motion under Code of Civil Procedure §473 on the ground that a voidable judgment may only be set aside within two years of its entry.

A void judgment, by contrast, may be set aside at any time. To avoid a time bar, the Shous needed a declaration on appeal that the judgment was void, not merely voidable.

Ramirez’s Opinion

In his opinion, which was not certified for publication, Presiding Justice Manuel A. Ramirez termed the document signed by Figueroa a “letter.” He wrote:

“Here, the application for publication was supported solely by the unsworn Figueroa letter. For that reason alone, it was inadequate.”

That inadequacy, he said, renders the judgment void. Ramirez cited the 1932 Court of Appeal decision in Narum v. Cheatham, which quotes a 1929 California Supreme Court case, Morgan v. Clapp, as saying:

“[I]f the affidavit upon which the order directing publication of summons was had in this action fails…the default judgment thereafter entered on such defective service would be void on its face, and the trial court at any time could...properly set it aside.’ “

Other Flaws

 Ramirez said that even if the “Figueroa letter” were considered, it only recites an attempt to effect service at two places linked to the venue. He pointed out:

“For example, he did not consult a telephone directory or Google (which did exist in 2001). A resident and a neighbor told him that the Schous had moved, but he did not claim he asked them where the Schous had moved to. He did not check public records to determine whether the Schous owned any other business. Most grievously, he did not consult real property records.”

The jurist said that “[a]lthough they were not required to do so…, the Schous introduced evidence” that such a check “would have led right to them.”

Under Code of Civil Procedure § 415.50, an order for service by publication must be supported by evidence that a summons “cannot with reasonable diligence be served in another manner.” He said such evidence was wanting in the present case.

A further infirmity, Ramirez noted, was noncompliance with the requirement of §415.50 of a statement of facts showing that a “cause of action exists against the party upon whom service is to be made.”

Slough’s Opinion

Concurring, except as to an award of costs on appeal in favor of the Schous, Justice Marsha G. Slough said that discretion should be exercised in favor of the plaintiffs in light of their loss of Richard Ortiz. She set forth:

“It strikes me as unfair to make them responsible for appellants’ costs on appeal when they got here through no fault of their own, trying only to obtain partial and necessarily inadequate redress for the grievous loss of their family member. We have the power in this small way to express our recognition of the unfairness, and I would take the opportunity to do so.”

The case is Trejo v. Schou, E070872.


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