29 Cal. App. 5th 954
Cal. Ct. App. 5th2018Background
- Plaintiffs (Dr. Jay W. Calvert and his professional corporation) sued Does 1–25 for alleged defamatory postings on ripoffreport.com and later amended to name Rima Al Binali.
- Plaintiffs attempted personal service at a Laguna Beach residence (which was a relative's home) and by mail; process servers were unsuccessful and were told Al Binali lived in Canada. Plaintiffs did not attempt service in Canada.
- The trial court ultimately authorized service by publication, specifying publication in The Orange County Register. Plaintiffs instead printed the summons in the Laguna News-Post (a regional subsidiary/newspaper produced by the Register).
- After republication to correct a defect, plaintiffs obtained a default judgment against Al Binali for $1,940,506 (including attorneys’ fees and costs) in January 2014.
- Al Binali later moved to vacate the default judgment, arguing the judgment was void on its face because the summons was published in the wrong newspaper; the trial court denied the motion and she appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication | Plaintiffs: publication in the Laguna News-Post satisfied the court's order (publisher chose the Post) / substantial compliance | Al Binali: summons was not published in the specific paper ordered (Orange County Register), so service was invalid | Court: service by publication required strict compliance with the court's order; publishing in the Laguna News-Post did not satisfy the order — judgment is void on its face |
| Effect of error on finality/diligence | Plaintiffs: defendant was not diligent in seeking relief; substantial compliance doctrine applies | Al Binali: a judgment void on its face is challengeable at any time regardless of diligence | Court: lack of diligence irrelevant where judgment is facially void; six-month limit does not apply |
| Substantial compliance precedent | Plaintiffs: rely on Columbia Screw and argue substantial compliance suffices | Al Binali: Columbia Screw is inapposite; later authority requires strict compliance with §415.50 | Court: rejects reliance on Columbia Screw; later cases require strict compliance for publication service |
| Disentitlement for failing to attend judgment debtor exam | Plaintiffs: move to dismiss appeal via disentitlement doctrine for failing to appear at debtor exam | Al Binali: did not attend to avoid general appearance and preserve jurisdictional challenge | Held: dismissal denied because the underlying judgment was void and absence at exam did not justify disentitlement |
Key Cases Cited
- Dill v. Berquist Construction Co., 24 Cal.App.4th 1426 (1994) (definition of judgment roll and when invalidity appears on its face)
- OC Interior Servs., LLC v. Nationstar Mortgage, LLC, 7 Cal.App.5th 1318 (2017) (default judgment void if service not in manner prescribed by statute)
- County of Riverside v. Superior Court, 54 Cal.App.4th 443 (1997) (service by publication must be strictly complied with)
- Eagle Electric Mfg. Co. v. Keener, 247 Cal.App.2d 246 (1966) (statutory conditions for constructive service are jurisdictional)
- Olvera v. Olvera, 232 Cal.App.3d 32 (1991) (substituted/constructive service requires strict compliance)
- Plotitsa v. Superior Court (Kadri), 140 Cal.App.3d 755 (1983) (a facially void default may be challenged at any time)
- Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445 (1903) (earlier case on affidavit sufficiency; court explains limits to its applicability)
- Carr v. Kamins, 151 Cal.App.4th 929 (2007) (service by publication ineffective where plaintiff failed to exercise reasonable diligence)