Judge Ralph C. Hofer, Case Number: 22GDCV00595, Date: 2025-04-25 Tentative Ruling

Plaintiff Edvard Akopyan alleges that defendants Ana Airapetian and Tamara S. Chirkalina became indebted to plaintiff in the sums of money of $17,000 and $25,000 for plaintiff’s services rendered, and failed to repay the money by issuing a check in the amount of $17,000 from a closed account and refusing to pay the amount of $25,000 when requested.

The file shows that on December 13, 2022, default was entered against defendant Anna Airapetian, based on proof of service showing the summons and complaint were served by substituted service on September 29, 2022, at defendant’s usual place of business in New York, NY by leaving the documents in the presence of Jessica Biever, Co-Worker, and by making follow up mailing to the address of service.

On February 24, 2023, the court heard a motion to set aside entry of default and quash service of summons filed by specially appearing defendant Airapetian. The motion was granted, the court finding that defendant appropriately had established that the service address was not defendant’s usual place of business or usual mailing address, but the service address was at an office of defendant’s employer where defendant had never worked.

On July 21, 2023, the court heard a motion brought by plaintiff for reconsideration of the court’s February 24, 2023 ruling, which was denied. The court also noted that plaintiff had filed a motion to set aside the court order setting aside entry of default which had been ordered taken off calendar. The court ruled that to extent plaintiff intended to keep the motion on calendar, the court had considered the motion, and it was also denied.

Defendant argues that the alleged service by publication was improper, as plaintiff failed to comply with the court’s Order for Publication directing plaintiff to publish the summons in the New York Law Journal. Defendant argues that there has been no proof of service filed showing publication in the New York Law Journal. Instead, the proof of publication filed by plaintiff on July 30, 2024 states that the summons was published in “THE CHIEF, Civil Service Leader, a weekly newspaper published in the County of New York.” [Do Decl., para. 14, Ex G].

A review of the file confirms that on February 9, 2024, the court signed and filed an Order for Publication, ordering that service of the summons and order for publication be served on defendant Airapetian “by publication thereof in NEW YORK LAW JOURNAL.” [Order for Publication, filed 02/09/2025].

The file also includes an “Amended” Order for Publication, which was received by the court on June 26, 2024, stating that service could be made by publication thereof in “New York The National Herald,” but there is no signed copy of the order in the file. The file does indicate in the docket that the Order for Publication AMENDED was signed and filed on June 27, 2024. In any case, the proof of service by publication filed with the court on July 30, 2024, and which entry of default was based on, shows service made by publication in “THE CHIEF, Civil Service Leader, a weekly newspaper published in the County of New York,” as represented by defendant here. This publication is not the New York Law Journal, or the New York The National Herald or a publication set forth in any Order of Publication signed or requested to be approved by plaintiff.

Plaintiff in the opposition does not dispute that the publication did not occur in the New York Law Journal as directed by the court, but argues that plaintiff properly sought leave to publish in an alternate newspaper and ensured that the summons was published in a widely circulated legal periodical in New York. Plaintiff in the opposition submits his declaration in which he states, “Service was completed in strict compliance with the Court’s order and in a widely circulated legal periodical in New York.” [Akopyan Decl., para. 5]. There is no submission of any court orders or other evidence which would suggest that the court approved publication in the The Chief, or generally in a widely circulated legal periodical in New York.

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444, citing, e.g. , Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176; see also Strathvale Holdings v. E.B.H. (2005, 2nd Dist.) 126 Cal.App.4th 1241, 1250 (“Lack of personal jurisdiction renders a judgment (or default) void, and the default may be directly challenged at any time.”). Where there was never valid service of summons, the court must set aside the default even where there is no showing of a meritorious defense. Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86-87.

“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.”

Since defendant here resides out of state, the court may order publication in “a named newspaper outside this state that is most likely to give actual notice” to defendant, emphasis added. The publication here accordingly was named by the court.

Defendant argues that the statute is strictly construed, and cites to Calvert v. Al Binali (2018) 29 Cal.App.5th 954, in which the Second District reversed a trial court order denying a motion to vacate of set aside a default judgment where plaintiffs had held that a default judgment was void because plaintiffs published the summons in the wrong newspaper, in that case, in the Laguna News-Post, when the court had ordered publication of the summons in the Orange County Register. The court of appeal reasoned:

“Al Binali argues that the judgment is void on its face because plaintiffs published the summons in the wrong newspaper. We have reviewed the judgment roll, specifically the order directing the publication of summons and the actual summons, and agree. The trial court ordered plaintiffs to publish the summons “in The Orange County Register, a newspaper of general circulation published at Orange County, California.” Plaintiffs, however, published notice in the Laguna News-Post. This error is fatal to their judgment.

“When jurisdiction is obtained by a prescribed form of constructive notice, the statutory conditions upon which service depends must be strictly construed; there must be strict compliance with the mode prescribed in the statute. Conformance with the statute is deemed jurisdictional and absence thereof deprives the court in the particular action of power to render a judgment.” (Eagle Electric Mfg. Co. v. Keener (1966) 247 Cal.App.2d 246, 250–251, 55 Cal.Rptr. 444.) “If there is any situation in which strict compliance can reasonably be required, it is that of service by publication.” (County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450, 62 Cal.Rptr.2d 747.)

Section 415.50 states that 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.” (Ibid.) Publication in the newspaper named by the court is essential, as it ensures notice is given via the periodical that the trial court finds most likely to give the defendant notice. Plaintiffs' failure to comport with the court's publication requirements renders the judgment void on its face.”

With respect to a challenge to service, the burden is on plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Mihlon v. Superior Court (1985, 2nd Dist.) 169 Cal.App.3d 703, 710; Ziller Electronics Lab GmbH v. Superior Court (1988, 2nd Dist.) 206 Cal.App.3d 1222, 1232-1233. Plaintiff must make this showing based on admissible evidence. Ziller Electronics, at 1233; see also Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983, 2nd Dist.) 146 Cal.App.3d 440, 444.

As noted above, plaintiff here relies on a declaration in which he states that “Service was completed in strict compliance with the Court’s order and in a widely circulated legal periodical in New York.” [Akopyan Decl., para. 5]. To the extent plaintiff seems to argue that the service was made in a “widely circulated periodical,” the statute requires the designation of a “named newspaper.” As indicated in Calvert, the requirement ensures that the court has the opportunity to order publication in a newspaper most likely to give the defendant notice.

Plaintiff in fact goes on to argue that “even assuming… that there was a minor technical defect in service,” defendant had actual notice of the lawsuit. However, this was not a minor technical defect, and, as explained in Calvert, the defect is fatal to the entry of judgment. The Second District in Calvert held that the judgment was void even where the publisher had been responsible for the error, and the publication was made in a subsidiary of the named newspaper:

“Plaintiffs ignore the breadth of case law establishing that section 415.50 is strictly construed. (See County of Riverside v. Superior Court, supra, 54 Cal.App.4th at p. 450, 62 Cal.Rptr.2d 747 [“the traditional rule is that the requirements for service of summons by publication must be strictly complied with”]; Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1034, 50 Cal.Rptr.3d 839; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41, 283 Cal.Rptr. 271 (Olvera); Eagle Electric Mfg. Co. v. Keener, supra, 247 Cal.App.2d at p. 251, 55 Cal.Rptr. 444.) As we have held, “ ‘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 collateral attack.’ [Citation.]” (Carr v. Kamins, supra, 151 Cal.App.4th at p. 936, 60 Cal.Rptr.3d 196 [examining service by publication].) That plaintiffs published the summons in the designated newspaper's subsidiary does not constitute compliance. The summons was not published in the Orange County Register, as required by the trial court. Plaintiffs' failure to comply with the statutory requirements for publication are plain on the face of the judgment roll.”

The motion also seeks to quash service of summons on the ground plaintiff cannot establish grounds for exercising personal jurisdiction over defendant, who does not reside in the State of California. Since the service of the summons has been deemed void, this request to quash the service is moot, as there is no service surviving to quash, and such relief is not necessary or appropriate at this time. Plaintiff is required to properly serve the summons and complaint on moving defendant, and, if appropriate, defendant may move to quash any further service on that ground, or any other appropriate ground.

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. Department D is now requiring either live or VIDEO appearances, not audio appearances. Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED.