Judge Audra Mori, Case BC663331 2022-10-18 Tentative Ruling

Plaintiff Patroba Joseph Brown (“Plaintiff”) filed this action against Defendant Cassandra Mahan Richards (“Defendant”) for damages arising out Defendant’s alleged physical attacks on Plaintiff. The complaint alleges causes of action for battery and negligence.

As relevant to this proceeding, Plaintiff obtained an Order for Publication on December 14, 2021, allowing Plaintiff to serve Defendant with the summons and complaint by publication in the Spokesman-Review, a newspaper of general circulation in Spokane, Washington. On May 6, 2022, Plaintiff filed a declaration asserting that publication was completed in Washington State and attaching a publisher’s affidavit from the Spokesman-Review attesting that the summons and complaint were published in its newspaper four times on March 25, April 1, April 8, and April 15, 2022.

On September 15, 2022, Defendant filed the instant motion to quash service of the summons and complaint arguing that Defendant was improperly served by publication. Defendant asserts that Plaintiff’s counsel’s declaration filed on May 6, 2022, does not declare that he complied with the requirement of mailing the published documents during the publication period as required by CCP § 415.50(b) and December 14, 2021 order for publication. Further, Defendant contends that Plaintiff did not mail the required documents to Defendant as required by CCP § 415.50, as Plaintiff’s counsel has a last known address for Defendant in Washington. Defendant argues that the service by publication on her is thus incomplete. Additionally, Defendant asserts that a statement of damages has not been served on her.

In opposition, Plaintiff contends that Defendant’s exact whereabouts in Washington are unknown, so Plaintiff is in compliance with CCP § 415.50. Plaintiff argues that Defendant’s contention that a failure to mail a copy of the summons and complaint is meritless, and that Defendant cites no authority that failure to file a declaration is fatal to the validity of service by publication. Plaintiff further asserts that because Defendant is a resident of Canada, there is no requirement that the documents be transmitted abroad. Plaintiff further argues that the Court’s order for publication does not have a cutoff date, and that the statement of damages is not germane to the issues presented by the motion to quash.

In reply, Defendant asserts that Plaintiff failed to mail a copy of the summons and complaint, and that Plaintiff is incorrect that the mailing was not required. Defendant asserts that she works in California and Washington and has not evaded service. Plaintiff asserts that the evidence shows that Plaintiff had an address for Defendant and that Plaintiff failed to comply with CCP § 415.50.

As the parties state, this is Defendant’s third motion to quash service of summons in this action. The previous second motion was heard and granted on September 14, 2022, where the Court noted in part, “Plaintiff has now submitted evidence showing that the summons and complaint were since published in the Spokesman-Review on March 25, April 1, April 8, and April 15, 2022. The Court makes no orders concerning this publication of the summons and complaint at this time, as the Motion to Quash was directed at the January 6, 2022, publication, not the March through April publications.” (Min. Order, Sept. 14, 2022.) As stated, no orders or findings were made concerning the relevant publications at the previous hearings. The Court will now address the March through April publications.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (CCP § 418.10(a).)

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].)

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg)) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg, supra, 53 Cal.App.4th at p. 808.) “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.”' (Id. at p. 809.)

(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:

(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.

(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.

(b) The 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. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.

Government Code § 6064 provides that “Publication of notice pursuant to this section shall be once a week for four successive weeks. Four publications in a newspaper regularly published once a week or oftener, with at least five days intervening between the respective publication dates not counting such publication dates, are sufficient. The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day.”

“ ‘When jurisdiction is sought to be established by constructive service, the statutory conditions for such service must be strictly complied with or the judgment is subject to [direct or] collateral attack.’ ” (Carr v. Kamis (2007) 151 Cal.App.4th 929, 936.)

Regarding service by publication, “[w]here it is not shown that the residence of the defendant is known the judge is not required to order that a copy of summons and complaint be mailed.” (Cradduck v. Financial Indem. Co. (1966) 242 Cal.App.2d 850, 857, citing (Klokke Inv. Co. v. Superior Court (1919) 39 Cal.App. 717, 719.) However, “[i]f … it is shown by affidavit that the residence of the defendant is known, the court, in addition to directing a publication of the summons, must direct a copy of the summons and complaint to be deposited in the post office, … Unless it appears that it was so directed, the record will fail to show a compliance with the order, and the proof of service will be incomplete.” (Parsons v. Weis (1904) 144 Cal. 410, 415.) Consequently, service by publication where the defendant’s address is known is not complete until copies of the summons and complaint are mailed to the defendant. (Schart v. Schart (1897) 116 Cal. 91, 93.)

Here, Plaintiff’s counsel’s May 6, 2022 declaration of completion of publication provides that publication was completed in Washington state, where Defendant states that her home address has been since 2015. (Reply Richards Decl. ¶ 2.) In moving to quash service of the summons, Defendant primarily contends that Plaintiff’s counsel does not state in his declaration that counsel complied with the requirement of mailing all published documents. The burden is on Plaintiff to establish that service of the summons and complaint by publication was proper. (See Brown, 17 Cal.App.5th at 1203; see also Sheard, 40 Cal.App.3d at 211.)

Plaintiff contends that he was not required to mail the documents to Defendant, as the order for publication was issued due to Defendant’s constant evading service attempts, and attempted service attempts were futile. Plaintiff asserts that Defendant’s whereabouts in Washington are not known to him and argues that the service by publication was properly completed on Defendant. Plaintiff’s counsel’s May 6, 2022 declaration shows that publication was completed in a Washington state newspaper on March 25, April 1, April 8, and April 15, 2022. (Opp. Exh. B.) Plaintiff, however, offers no evidence concerning whether or not Plaintiff ascertained Defendant’s address before expiration of the time prescribed for publication.

As required by CCP § 415.50(b), the December 14, 2021 order for publication expressly provided that a copy of the summons and complaint were to be mailed to Defendant “if [her] address is ascertained before expiration of the time prescribed for the publication of this summons… A declaration of this mailing, or of the fact that the address was not ascertained, must be filed at the expiration of the time prescribed for the publication.” (Opp. Exh. A.) When Plaintiff’s counsel applied for the Order for Publication, his declaration filed on August 4, 2020, included an address for Defendant, 22512 E. Pennrose Loop, Liberty Lake, WA 99019. (Decl. filed August 4, 2020, Exh. 1.) Further, as Defendant asserts, on November 24, 2021, before Plaintiff obtained an Order for Publication on December 14, 2021, Plaintiff filed a Notice of Ruling regarding an Order to Show Cause with proof of service on Defendant at this same Washington address. While Plaintiff argues without evidence that Defendant’s specific whereabouts are unknown to him, Plaintiff does not respond to Defendant’s arguments concerning filing proof of service on this Washington address. Plaintiff offers no explanation for why this address was served prior to the December 21, 2021 publication order if Defendant’s whereabouts are unknown to him. This evidence shows that Defendant’s address was known to Plaintiff, even if Plaintiff could not serve Defendant through other methods. Plaintiff does not submit any evidence to suggest otherwise. Plaintiff, thus, fails to meet his burden to show that service by publication was properly completed. (Parsons, 144 Cal. at 415, Schart, 116 Cal. at 93.)

To the extent that Plaintiff contends that mailing is not required because Defendant resides in Canada, it is unclear whether this argument is made in error. Plaintiff asserts that Defendant resides somewhere in Washington and the relevant publication order concerned publication in Washington, not Canada. Further, Defendant, in reply, admits her home is in Washington. Therefore, Plaintiff’s arguments concerning mailing the summons and complaint abroad are irrelevant.

Additionally, Plaintiff’s counsel’s May 6, 2022 declaration states, “Publication has been completed in Washington State. Please find attached as Exhibit ‘1’ the Publisher's Affidavit from Spokesman-Review.” (Opp. Exh. B.) Plaintiff’s counsel’s declaration, however, does not contain a declaration of any mailing or of the fact that Defendant’s address was not ascertained as ordered to do so by the December 14, 2021 publication order. Consequently, Plaintiff’s counsel’s May 6, 2022 declaration on its face does not comply with the Court’s order.

Based on the foregoing, the motion to quash service of the summons and complaint is granted.

Hon. Audra Mori

Judge of the Superior Court