JOHN RIOS, JR., Plаintiff and Respondent, v. RAGHVENDRA “RAJ” SINGH, Defendant and Appellant.
C086959
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 5/25/21
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JOHN RIOS, JR.,
Plaintiff and Respondent,
v.
RAGHVENDRA “RAJ” SINGH,
Defendant and Appellant.
C086959
(Super. Ct. No. 34-2015-00180028-CU-PO-GDS)
We conclude (1) the trial court did not err in granting Rios’s application for an оrder of service by publication and Singh fails to show that the service by publication here did not comply with section 415.50; (2) Singh’s November 2, 2015 motion was not an answer and did not preclude the entry of default; (3) Singh did not satisfy the requirements for relief under section 473.5; (4) publication of the statement of damages provided Singh notice of the amount of damages Rios sought; (5) Singh was not entitled to further notices after the entry of default; and (6) we do not consider Singh’s contentions on the merits because he has not shown that default was improperly entered. We will affirm the judgment.
BACKGROUND
Rios filed a complaint for premises liability against Singh, Kiran Rawat, and Singh and Rawat as trustees of The Ram Sita Trust. The complaint alleged defendants negligently owned, leased, occupied, controlled, repaired, maintained, inspected and/or managed certain real property located on Stockton Boulevard in Sacramento such that a fire broke out at the property and injured Rios.
Also in support of the ex parte application for service by publication, Rios’s attorney Anthony Ontiveros declared that he hired private investigator Rick Rogers to identify the owner of the Stockton Boulevard property. Rogers’s investigation showed that The Ram Sita Trust owned the property and Singh and Rawat were the trustees of the trust. Rogers provided Ontiveros with a post office box address in Sacramento for the trust. Ontiveros later asked Rogers to serve Singh and Rawat at an address on 28th Street
in Sacramento, which Rogers’s investigation found was the last known physical address for Singh and Rawat. Service at that address was unsuccessful.
A man identifying himself as Singh called Ontiveros about a month after Rios filed his complaint. Singh said he was aware of Rios’s lawsuit, he had information about Rios which he would use if the lawsuit continued, and Ontiveros should drop the lawsuit against defendants and sue Sacramento County instead. Ontiveros tried to get Singh to meet Rogers but Singh refused any contact except by telephone.
Rogers passed away shortly thereafter, and Ontiveros hired private investigator Tom Campbell to find and serve process on defendants. In support of the ex parte application for service by publication, Campbell declared that he had learned that Singh and Rawat operated a business on 51st Avenue in Sacramento. Campbell’s research showed that The Sitaram Trust, another trust associated with Singh and Rawat, owned the 51st Avenue property.
Nearly two months after Rios filed the complaint and the day before Campbell attempted to serve defendants at the 51st Avenue property, Ontiveros received a document titled “Notice and Request to Withdraw Frivolous Filing” and a letter by facsimile. The request contained the title and case number for Rios’s complaint and purported to be signed by “Karen Singh,” whose address was the same post office box address as for The Ram Sita Trust.2 The request stated, “We heard that you filed above stated lawsuit. You are notified pursuant to California Civil Procedure Code sections 128.5 and 128.7 that we will request for sanctions and for damages against you if you do not withdraw the complaint in the above captioned case within 30 days.
had any contact with John Rios. So, Karen Singh can never be liable. The house was not under the control of defendants at the time of incident. Notices and the Sheriff clarified to everyone on several occasions that it was a crime to stay in the house at the time of incident. So, plaintiff should be behind bars for trespassing, living in inhabitable [sic] house and other crimes. Defendants believe that plaintiff conspired with others to burn the house.”
The aсcompanying letter was addressed to the “[a]ttorney for the welfare of John Rios.” It was unsigned. The letter threatened to request sanctions and initiate a malpractice lawsuit against Rios’s attorney and to disclose Rios’s criminal activities if the lawsuit was not dismissed.
Campbell attempted to serve Singh and Rawat at the 51st Avenue property on July 29, 2015. It was an industrial and commercial property with an office building set back about 75 yards from a locked gate. Campbell spoke to a black male who was inside the fenced area and who appeared to be guarding the premises. That person said Singh shоuld be there within the next few hours. Campbell saw the man again when he returned to the property about two hours later. The person said Singh was regularly at that site, mostly during mid-day. The gate remained locked. Campbell did not see any activity at the office.
Singh called Ontiveros later that afternoon and left messages asking for a return call. When Campbell returned Singh’s calls, Singh told Campbell he would not cooperate with attempts to serve him.
Campbell returned to the 51st Avenue property on August 5, 2015. The gate remained locked and there was no one at the property except for the man who appeared to be a guard. The man again told Campbell that Singh came to the property most days at mid-day. Campbell again returned to the property at about 1 p.m. the next day. The gate was locked and he did not see anyone on the premises.
Ontiveros sent the summons, complaint and an acknowledgment of receipt of the summons to Singh at the post office box address for The Ram Sita Trust on August 24, 2015. The same documents were sent the same day to the post office box, addressed to Rawat. Ontiveros received no response from Singh or Rawat.
Three months after he filed his complaint, Rios filed the ex рarte application for service by publication on the ground that defendants were evading
Singh filed a motion to set aside all rulings by the trial court and a document titled “reply” on November 2, 2015. Those papers showed that Singh’s address was the same post office box as for Rawat and The Ram Sita Trust. Singh asserted that Judge Cadei, who signed the order for publication, was biased against defendants. He also claimed Rios did not authorize the lawsuit; Rios caused the fire; and Rios was a career criminal and had committed many crimes on the property. No declaration accompanied the motion and reply.
The trial court noted that the only order it had granted was the order permitting service of the summons by publication and Singh did not explain why that order should be set aside. Therefore, the trial court refused to set aside its order for service by publication.
More than five months later, Rios filed a request for entry of default, seeking a judgmеnt of $4,803,764 including costs of $3,764 against defendants. A copy of the request was sent by mail to Singh, Rawat and The Ram Sita Trust at their post office box address. Default was entered the same day.
Singh and Rawat filed a motion to set aside the default and for other relief and a document titled “reply” shortly thereafter. They argued that the default was improperly entered because defendants had filed an answer on November 2, 2015. They further
asserted that service by publication was improper because Rios knew their address but did not serve them there; the service by publication did not disclose the content of the complаint; and they did not see any publication. Singh and Rawat sought relief under sections 473 and 473.5. Their “reply” attacked the complaint and asserted various defenses.
The trial court denied Singh and Rawat’s motion, noting that no answer had been filed and that defendants did not submit a declaration or any evidence supporting their claims regarding improper service.
Singh and Rawat filed a motion for reconsideration, repeating many of the same arguments raised in their set-aside motion. Singh submitted a supporting declaration asserting the following: Rios knew defendants’ address but did not serve them there. Defendants did not notice any publiсation about this case. Rios did not inform defendants of the action. Rios told Singh that Rios did not file the action. And Singh told Rios’s attorney that Singh would welcome service if the attorney confirmed that Rios was really a plaintiff.
Singh filed a third motion to set aside the default and for other relief about two months later, repeating arguments he had previously made and raising new arguments which he reiterates on appeal. The trial court denied that unopposed motion. It ruled that service on a post office box was not permitted under
relief under
Singh filed a fоurth motion to set aside the default and for other relief about 11 months later. He repeated the arguments made in the prior set-aside motion and also argued defendants could not be liable to Rios because the trial court had appointed a receiver for the Stockton Boulevard property and Rios had been evicted and cited for trespassing on the property. The trial court treated Singh’s motion as an untimely motion for reconsideration under
Singh filed a fifth set-aside motion 23 days later, аgain repeating many of the arguments he had previously made and also arguing that the complaint did not state the amount of damages; the receiver and Sacramento County were necessary parties; Rios’s attorney did not tell Singh that Rios had filed documents for a default judgment; and Rios assumed the risk of injury.
Following a default prove-up hearing, which was set to take place before the hearing on Singh’s fifth set-aside motion, the trial court entered judgment in favor of Rios and against Singh and Rawat in the amount of $1,782,793.06 in special damages, $3 million in general damages, and $3,764 in costs, for a total judgment of $4,786,497.06. The trial court later continued the hearing on Singh’s set-aside motion because it was concerned that Singh had not actually served Rios with the motion. It directed the court clerk to serve Rios’s counsel with a copy of its minute order so that counsel might file and serve an opposition to Singh’s motion. Rios filed an opposition to the set-aside motion. His attorney averred that Rios did not receive notice of Singh’s set-aside motion nor the prior set-aside motions and orders denying those prior motions. The trial court dropped Singh’s motion from its calendar due to the lack of notice.
I
Singh argues the trial court lacked pеrsonal jurisdiction because Rios did not properly serve the summons and complaint; therefore, all orders by the trial court are void.
“ ‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] . . . [A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ ” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (Ellard); accord Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961-962; Carr v. Kamins (2007) 151 Cal.App.4th 929, 936-937.) Whether a judgment is void for lack of proper service is a question of law that we review de novo. (Calvert, at pp. 961-962; Giorgio v. Synergy Management Group, LLC (2014) 231 Cal.App.4th 241, 247 (Giorgio).)
A numbеr of honest attempts to learn the defendant’s whereabouts through inquiry and investigation generally are sufficient. (Watts, supra, 10 Cal.4th at p. 749, fn. 5.) A plaintiff must show such efforts because it is generally recognized that service by publication rarely results in actual notice. (Ibid; accord Donel, Inc. v. Badalian (1978)
87 Cal.App.3d 327, 332 (Donel); Sanford v. Smith (1970) 11 Cal.App.3d 991, 1001 (Sanford).) Whether the plaintiff exercised the diligence necessary to justify resort to service by publication depends on the facts of the case. (Donel, at p. 333.) The question is whether the plaintiff took the steps a reasonable person who truly desired to give notice of the action would have taken under the circumstances. (Ibid.) We review a trial court’s finding that
Here, substantial evidence supports the trial court’s finding that Rios could not with reasonable diligence serve the summons and complaint on defendants by a means superior to publication. Ontiveros hired Rogers and later Campbell to locate and serve the owners of the property where Rios was injured, and they made numerous attempts to effectuate service. While
Ontiveros also attempted to serve Singh and Rawat with the summons and complaint by mail pursuant to
the acknowledgment is returned to the sender. (
Singh argues Rios was required to serve defendants by mail at least three times, but he cites no legal authority in support of his assertion. An appellate brief must support each point by argument and, if possible, by citation of authority and to provide a citation to the record for a factual assertion. (
Singh also challenges the declarations filed in support of Rios’s application for publication. A declaration supporting a
Singh also complains that defendants did not actually see the publication of the summons. Although
not require that the defendant actually see the publication. (
Moreover, the record shows that Singh and Rawat actually knew of Rios’s lawsuit аgainst them and the nature of Rios’s claim. Singh admitted to Ontiveros that he was aware of Rios’s lawsuit, and Singh attempted to convince Ontiveros to dismiss the lawsuit against defendants and to sue Sacramento County instead. Singh’s statement to Ontiveros was an admission and was admissible to show actual notice of the complaint. (See Langley v. Zurich General Accident & Liability Ins. Co. (1933) 219 Cal. 101, 103-105 (Langley).) A few weeks after that telephone call, Ontiveros received a request from Rawat to withdraw the complaint or face sanctions under
Singh next contends that Rios should have mailed defendants a copy of the summons pursuant to
Singh also argues that Rios should have served the complaint by publication.
In addition, Singh complains that the publication order application was made ex parte. But an application for an order of publication of the summons may be made at an ex parte hearing. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2020) ¶¶ 4:427, 9:347; see Stern v. Judson (1912) 163 Cal. 726, 735 [affidavit for an order for the publication of summons is always ex parte].)
We conclude that Singh and Rawat’s failure to return signed acknowledgements of receipt of the summons and Singh’s avoidance of the service of process, in particular his refusal to meet with Ontiveros’s private investigator in person and statement to Campbell that he would not cooperate with the service of process, together with Ontiveros’s diligent efforts to serve the summons and complaint on Singh and Rawat, supported the trial court’s conclusion that resort to service by publication was justified. (Langley, supra, 219 Cal. At pp. 104-105; Miller, supra, 195 Cal.App.2d at p. 786; see Giorgio,
supra, 231 Cal.App.4th at pp. 248-249; cf. Olvera, supra, 232 Cal.App.3d at pp. 41-43; Donel, supra, 87 Cal.App.3d at pp. 333-334.)
An application for an ordеr of publication must be accompanied by an affidavit stating facts from which the trial court can draw the conclusion that the plaintiff has a cause of action against the defendant. (Olvera, supra, 232 Cal.App.3d at p. 42, fn. 9; Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726.) This is a jurisdictional prerequisite to the issuance of an order of publication. (Ibid.; Islamic Republic of Iran v. Pahlavi (1984) 160 Cal.App.3d 620, 628.) Singh further argues that Rios was not entitled to a default judgment because the complaint failed to state a cause of action or did not support the demand for relief. But here, the trial court could reasonably infer from Rios’s averments and statement that he had a valid cause of action against defendants that defendants’ conduct was a substantial factor in bringing about Rios’s harm. Rios’s declaration satisfied the requirement in
II
Singh next asserts that default was improperly entered because defendants had filed an answer or reply on November 2, 2015. Not so.
“In all actions where the service of the summons was by publication, upon the expiration of the time for answering, and upon proof of the publication and that no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to
the time default was entered against defendants, any of them had filed a pleading, motion or petition specified in
The only motion filed by any defendant prior to the entry of default was Singh’s November 2, 2015 motion, which was directed at the order of publication. Although Singh now contends his motion constituted an answer, the motion expressly stated, “Defendants will file their answer after defendants are served properly.” Additionally, the motion was not titled “answer” or other motion or pleading specified in
III
Singh contends the trial court erred in denying him relief under
“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (
or deny relief under
As we have explained, the record shows that Singh had aсtual notice of Rios’s lawsuit in time to file an answer or other response to the complaint and avoid the entry of a default. (See Ellard, supra, 94 Cal.App.4th at p. 548.) Even if he lacked actual notice of the action in time to defend, Singh bore the burden of showing that his lack of actual notice was not caused by his avoidance of service or inexcusable neglect (
IV
Singh also argues the trial court erred in awarding Rios damages because the complaint did not state the amount of damages.
In personal injury actions, the plaintiff cannot state in the complaint the amount of damages sought. (
has obtained an order for service of process by publication is not required to apply for a second order to serve a statement of damages by publication. (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318.)
Herе, Rios filed a declaration showing publication of a statement of damages in The Sacramento Bee on four dates over four successive weeks in March 2016. The statement indicated that Rios sought over $4.8 million in general and special damages from defendants. Singh’s challenge lacks merit.
V
Moreover, Singh complains that Ontiveros should have disclosed during their January 27 to 30, 2018 communications that Rios had filed documents in support of a request for entry of judgment.
After default was entered, Singh was no longer an active party in the litigation and, thus, was not entitled to further notices. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.) Nevertheless, Singh knew the date of the defаult prove-up hearing because he asked the trial court to continue that date. And Singh attended the default prove-up hearing. Singh fails to demonstrate how he is entitled to any relief.
VI
Singh raises a number of defenses to the complaint. For example, he says he cannot be liable for any incident after September 23, 2013, because he was
The entry of default bars Singh from advancing contentions on the merits. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823.) A default “cuts off the defendant from making any further opposition or objection to the relief which plaintiff‘s complaint shows he is entitled to demand.” (Title Ins. & Trust Co. v. King Land & Improvement Co. (1912) 162 Cal. 44, 46.
v. King Land & Improvement Co. (1912) 162 Cal. 44, 46.) After a default, a defendant is “ ‘out of court’ ” and cannot take any further steps in the cause affecting the plaintiff‘s right of action until the default is set aside in a proper proceeding. (Ibid.; Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) We cannot consider Singh’s contentions because he has not shown that the default was improperly entered.
Singh further urges that Rios was a criminal, wanted “to make millions illegally in this case,” and Rios’s attorney claimed to have judges “on his payroll.” We do not consider those claims because Singh fails to provide any reasoned argument showing why reversal is required on those grounds, with citation to legal authority and to evidence in the record supporting his factual assertions. (Tanguilig, supra, 36 Cal.App.5th at p. 520; Nwosu, supra, 122 Cal.App.4th at p. 1245, fn. 14; Badie, supra, 67 Cal.App.4th at pp. 784-785.)
DISPOSITION
The judgment is affirmed. Rios shall recover his costs on appeal. (
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.