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Ninth Circuit:
Woman in China Was Validly Served by Publication of Summons in L.A. Times
California Decisions Distinguished on Basis of Knowledge in Those Cases That Defendant Was Abroad
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a woman who was residing in China was properly served with a summons by publication of it in the Los Angeles Times, affirming the denial of a motion to vacate a default judgment.
Defendant Fang Zeng cited as authority the 2019 California Court of Appeal decision by this district’s Div. Eight in In re D.R., authored by Presiding Justice Maria E. Stratton. There, it was held that it “was not unreasonable” to have expected the Los Angeles County Department of Children and Family Services (“DCFS”) locate a father in Mexico rather than serving him by publication, noting that “the use of social media to contact parents whose whereabouts are unknown was not a new concept to DCFS.”
Zeng also cited that division’s 2012 decision in Lebel v. Mai. In that case, substitute service on the defendant’s mother was found inadequate.
The defendant resided in England. Justice Elizabeth A. Grimes wrote:
“Plaintiff failed to make a colorable showing that the service of documents on defendant’s mother in California constituted proper service on defendant, a resident of England.”
Matter of Knowledge
Those cases were differentiated by a Ninth Circuit panel in a memorandum opinion signed by Judges Patrick J. Bumatay, Kenneth Kiyul Lee, and Kim Wardlaw, pointing out that they “hold that service is improper when a plaintiff knows that the defendant resides in another country.”
The judges wrote:
“The record makes clear that, upon Wang’s reasonable belief, Zeng resided and could be served in California.”
A footnote points out:
“Zeng was the chairwoman of the California Immigrant Investment Fund, an entity which was incorporated in California and has its principal place of business in Los Angeles. Zeng also obtained mortgages on her Arcadia property in 2011 and 2016 which indicate her agreement to occupy the property as her principal residence and which designate it as her mailing address, respectively. That a deed of trust from 2011 lists a Chinese address, and that Wang once met Zeng in an office in China in 2016, are insufficient to show that Wang knew Zeng resided in China.”
Wide Circulation
The opinion continues:
“Wang’s service by publication was reasonably calculated to give Zeng notice. The summons was printed in the Los Angeles Times, one of the most widely circulated newspapers in California, four times over two months. And while the case number was misprinted, the publication did not reference a completely unrelated case. It contained Zeng’s name, and the case number referred to another lawsuit before the Central District of California in which Zeng is a party.”
The judges said that District Court Judge Michael W. Fitzgerald of the Central District of California correctly found it to be, in his words, “implausible that a defendant, seeing their name in a published notice, would look up the case number, find that the case number is for a different action that also names the same defendant, and then deem themselves absolved of knowledge of either lawsuit—especially when the plaintiff has already attempted service in several other manners.”
Hague Convention
The opinions by Stratton and Grimes both found that the Hague Convention, which sets forth procedures for service of process in another nation, applied. Yesterday’s Ninth Circuit opinion quotes the U.S. Supreme Court’s 1988 opinion in Volkswagenwerk Aktiengesellschaft v. Schlunk as saying:
“Where service on a domestic agent is valid and complete under both state law and under the Due Process clause, our inquiry ends and the Convention has no further implications.”
The Ninth Circuit declared:
“As shown above, service of process was valid under California law.”
The case is Wang v. Zeng, 22-56141.
Copyright 2023, Metropolitan News Company