Court of Appeal:
Opinion Says Defendant Whose Home Address in Orange County Was Known but Wouldn’t Come to the Door for Process Servicer Was Validly Served Through Publication of Summons in Los Angeles Newspaper
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed an order denying a motion to set aside a default judgment for more than $1 million against a man who was served by publication of a summons in a Los Angeles newspaper notwithstanding that the plaintiff knew that he resides in Orange County.
That publication, Presiding Justice Dennis Perluss of Div. Seven said, in an opinion rendered on Wednesday, was effective because the defendant “has not pointed to anything in the judgment roll to support his contention the newspaper did not circulate in Orange County.” The opinion was not certified for publication notwithstanding the uniqueness of its holding.
The newspaper publishing the summons, the Los Angeles Daily Journal, is adjudicated under Government Code §6000 as a “newspaper of general circulation,” a requisite for effectively publishing legal notices where publication is provided for by statute. It is adjudicated for the City of Los Angeles and the County of Los Angeles.
Order for Publication
Although the Daily Journal is not adjudicated for Orange County (a newspaper cannot be adjudicated for more than one county or more than one city within that county) then-Los Angeles Superior Court Judge Gerald Rosenberg (now a private judge) signed an order designating that newspaper as the one in which the summons was to be published in an action against Erik M. Halfacre.
Although Code of Civil Procedure §415.50(b) does not require that the designated newspaper be one adjudicated for the county in which the defendant resides—saying that “[t]he 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”—judges of the Los Angeles Superior Court generally do impose that requirement.
In support of the application for an order for publication was a Feb. 2, 2015 declaration by an investigator, Daniel Thibodeau, who said he had located Halfacre’s Corona del Mar residence.
Process Server’s Declaration
He set forth:
“It appeared that Mr. Halfacre was in the residence but would not come out to be served.”
Thibodeau commented that given “the extreme difficulty in serving a person who is actively attempting to evade service...service by publication is the only effective means of achieving service.”
The traditional view expressed by cases is that service by publication is authorized only where the defendant cannot be located or otherwise served in the state. A Judicial Council comment appended to the publication statute says:
“Section 415.50 provides a method for effecting service upon a defendant whose whereabouts are unknown and who has no known fixed location where service can be otherwise effected in a manner specified in this article.”
1991 Opinion Cited
Halfacre cited the 1991 decision of the Fourth District’s Div. Two in Olvera v. Olvera. There, the application for an order for publication in a Riverside Superior Court case contained this explanation: “Defendant no longer resides in Riverside, Ca., and cannot be found.”
Publication was ordered in the Press-Enterprise, a newspaper of general circulation for the City and County of Riverside.
The notice completed its four-time run on Oct. 13, 1988; the defendant was deemed served as of that date; she did not timely answer and her default was entered. Following a prove-up, a default judgment was granted.
Affirming the granting of a 1989 motion to set aside the default, the appeals court said:
“The last factor to be considered is the choice of the Riverside Press-Enterprise for publication….Nothing in the affidavit, or in the more detailed facts before the trial court, supported the election of this newspaper. Plaintiffs repeatedly insisted that [the defendant] was no longer in Riverside and admitted only that she received mail in Pismo Beach.”
Perluss pointed out that a factor in Olvera was that a sufficient effort had not been made to locate the defendant. He wrote:
“The circumstances rendering the judgment void in Olvera are not present here. As discussed, Jones demonstrated reasonable diligence in locating and attempting to personally serve Halfacre with the summons and complaint. Further, nothing in the judgment roll indicates the Los Angeles Daily Journal does not circulate within Orange County in a manner that satisfies the requirements of section 415.50, subdivision (b).”
The opinion validates the determination by Los Angeles Superior Court Judge Marc D. Gross (who took over the case when Rosenberg left the court) that he had no power under Code of Civil Procedure §473 to vacate the judgment given that more than six months had passed since its entry and it was not void on its face.
Perluss also said that Gross did not abuse his discretion in not exercising inherent powers.
Jones’s attorney, Gary Kurtz, had mailed copies of the summons and complaint to Halfacre’s Corona del Mar residence and his previous residence in Newport Beach, and the Postal Service did not return them. In light of that, Perluss said in a footnote, “it was reasonable for Kurtz to conclude service by mail pursuant to section 415.30, which requires the defendant to sign and return an acknowledgment of receipt of summons, was not practicable.”
Although Rosenberg granted a default judgment in the amount of $3,202,299.50, Gross later pared it to $1 million—the only sum mentioned in the complaint—plus prejudgment interest, bringing the amount to $1,071,066.62.
The case is Jones v. Halfacre, B303380.
Jennifer B. Gardner of the Hollywood firm of Gardner + Associates and Hillary Arrow Booth and Allan P. Bareng of the West Los Angeles firm of Booth, LLP represented Halfacre. Jennifer L. Meeker and Maya G. Hamouie of the downtown Los Angeles firm of Nossaman, LLP, acted for Jones.
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