65 Cal.App.5th 871
Cal. Ct. App.2021Background
- Rios sued Singh, Rawat, and trustee entities for premises liability after a house fire that killed Rios’s fiancée and severely burned Rios.
- Plaintiff’s counsel hired private investigators who attempted multiple in-person serves at a 51st Avenue business address and sent process to a post office box tied to the trusts; investigators reported Singh avoided personal service and refused to meet a process server.
- Plaintiff obtained an ex parte court order under Code Civ. Proc. § 415.50 authorizing service of the summons by publication in The Sacramento Bee; proof of publication and a later publication of a statement of damages were filed.
- Default was entered after no signed mail acknowledgments or an answer were returned; at a prove-up hearing the court entered judgment totaling about $4.79 million.
- Singh repeatedly moved to set aside the publication order and the default (invoking § 473.5 and other grounds), argued improper service and lack of notice, and raised merits defenses; the trial court denied relief and Singh appealed.
Issues
| Issue | Plaintiff's Argument (Rios) | Defendant's Argument (Singh) | Held |
|---|---|---|---|
| Validity of service by publication / personal jurisdiction | Plaintiff exercised reasonable diligence (investigators, certified mail to P.O. box) and obtained court-ordered publication | Publication was improper because plaintiff knew other addresses, declarations were defective, and defendants never saw the notice | Court affirmed: substantial evidence supported reasonable diligence and publication complied with § 415.50; publication need not actually be seen |
| November 2, 2015 filing effect | Default appropriate because no timely answer or specified pleading was filed | Singh contends his Nov. 2 filing was an answer preventing default | Court held Nov. 2 filing was not an answer (it expressly reserved filing an answer later and did not meet answer requirements); default entry was proper |
| Relief under Code Civ. Proc. § 473.5 | Singh sought to set aside default for lack of actual notice | Singh argued he lacked actual notice and was entitled to relief | Denied: Singh had actual notice earlier; his declaration was conclusory and he did not submit a proposed pleading as required by § 473.5 |
| Sufficiency of damages notice / requirement to publish statement of damages | Rios complied by publishing a statement of damages; plaintiff followed § 425.11 procedures for nonappearing defendants | Singh argued the complaint failed to state damages and publication was insufficient or unseen | Affirmed: statute prohibits stating amount in complaint for PI claims; plaintiff published statement of damages in the newspaper as required |
| Post-default notice and raising merits defenses | Plaintiff says default bars defendant from arguing merits absent set-aside | Singh argued counsel should have disclosed filings and invoked various defenses (receiver, trespass, assumption of risk) | Court held defaults bar merits defenses; Singh was not entitled to post-default notices and did not show default was improperly entered |
Key Cases Cited
- Ellard v. Conway, 94 Cal.App.4th 540 (affirming rule that failure to comply with statutory service can render default void)
- Watts v. Crawford, 10 Cal.4th 743 (service by publication available when other methods impossible; diligence standard)
- Giorgio v. Synergy Management Group, LLC, 231 Cal.App.4th 241 (standard of review and evidentiary showing for publication service)
- Donel, Inc. v. Badalian, 87 Cal.App.3d 327 (diligence required before resort to publication)
- Langley v. Zurich General Accident & Liability Ins. Co., 219 Cal. 101 (admissions to plaintiff’s counsel can show actual notice)
- Anastos v. Lee, 118 Cal.App.4th 1314 (no second publication order required to serve statement of damages after publication order)