Calvert v. Binali ( 2018 )

Filed 12/4/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DR. JAY W. CALVERT et al., B282984
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC453888)
v.
RIMA AL BINALI et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Edward B. Moreton, Jr., Judge. Reversed with
instructions.
Law Offices of Pasquale P. Caiazza and Bernadette M.
Stafford for Plaintiffs and Respondents.
Law Offices of Cyrus S. Naim and Cyrus S. Naim for
Defendant and Appellant.
__________________________
INTRODUCTION
Defendant Rima Al Binali appeals the trial court’s denial of
her motion to vacate the $1,940,506 default judgment entered
against her in favor of plaintiffs Dr. Jay W. Calvert and Jay
Calvert, M.D., a professional corporation. Al Binali asserts that
plaintiffs’ faulty service by publication rendered the judgment
void on its face. We agree and reverse.
FACTS AND PROCEDURAL BACKGROUND
Dr. Calvert is a plastic surgeon based in Southern
California and Al Binali is his former patient. This lawsuit
precipitated from a negative review allegedly posted online by
one of Dr. Calvert’s former patients, commenting about surgical
procedures and care that the patient received.
1. Plaintiffs’ Defamation Lawsuit
On January 27, 2011, plaintiffs filed a defamation lawsuit
against Does 1-25, alleging that the doe defendants made false
reports about plaintiffs “on the consumer information and
advocacy website found at www.ripoffreport.com.”
Plaintiffs then obtained an order permitting them to
conduct discovery to determine the identity of the alleged
offenders. Plaintiffs subpoenaed Xcentric Ventures, LLC, the
owner of ripoffreport.com. Xcentric was unable to identify the
author of the reports because the author provided a false name
and address to Xcentric.
Plaintiffs nonetheless decided, based on the content of the
postings and information provided by Xcentric, the author was
Rima Al Binali. On February 8, 2012, Plaintiffs filed an amended
complaint providing more detail for the allegations. On February
10, 2012, plaintiffs filed an amendment naming Al Binali as a
defendant.
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2. Plaintiffs’ Attempted Personal Service in Laguna
Beach, California
On January 24, 2012 (prior to naming Al Binali as a
defendant), plaintiffs hired private investigator William Courtice
to serve Al Binali with a deposition subpoena. Courtice
conducted a public records real property ownership search in
Orange, Riverside, San Diego, San Bernardino, Ventura, and Los
Angeles Counties for Al Binali with no success. Courtice
conducted a public records search for Al Binali’s phone number
and address. One of the search results linked Al Binali to a home
within a gated Laguna Beach community. The post office box
number found in Al Binali’s patient file was registered to a man
at that address, who shared Al Binali’s last name. Courtice
attempted service of the subpoena on that address on January 26,
2012 without success. The next day, Courtice again attempted
service of the subpoena at the address and was greeted by a man
at the door. He informed Courtice that Al Binali lives in Canada.
Plaintiffs never investigated whether Al Binali lived in Canada.
Courtice attested a security gate guard told him that he sees Al
Binali there daily. On seven days in February and two days in
March 2012, Courtice attempted to serve the complaint and
summons on Al Binali at that address but had no success despite
conducting stakeouts.
A registered process server also staked out the Laguna
Beach residence on three days and attempted service at that
address five times, but did not have success. The process server
attested “It is my belief that with every service attempt. . . , the
security gate guard would alert Albinali [sic] and/or her family
that I was on my way.” Based on Al Binali’s declaration in
support of her motion to vacate and attached exhibits
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documenting her travel, it appears Al Binali (a citizen of Saudi
Arabia) was a permanent resident of Canada visiting Saudi
Arabia at this time, and was never in the United States during
any of the times plaintiffs attempted service. The Laguna Beach
residence was her brother’s home.
In February and May 2012, Plaintiffs also twice mailed the
summons and complaint by regular mail to the Laguna Beach
address, but the envelope was returned with the word “unknown”
written on it. Pursuant to the trial court’s directive, plaintiffs
sent the summons by first class mail to the post office box listed
in Al Binali’s patient file in May.1 The summons was returned to
plaintiffs with a hand-written notation on it stating “not here”
and a “return to sender: attempted not known” postal stamp.
Plaintiffs attempted service by mail at another post office box
associated with the Al Binali last name, but the mail was never
picked up and the man who held the box returned the key.
Plaintiffs also attempted to send her a singing telegram on her
birthday to serve her, but were unable to contact her by phone.
3. Service by Publication
Following plaintiffs’ failed attempts to serve Al Binali at
the Laguna Beach residence, plaintiffs applied for an order to
serve Al Binali by publication in May 2012. The trial court twice
rejected the application, requiring plaintiffs to make additional
efforts, which are summarized above, and correct documents they
filed with the court. On July 11, 2012, the court granted
plaintiffs’ application and ordered publication of the summons in
the Orange County Register.
1 The trial court directed plaintiffs to mail the summons to
the post office box associated with Al Binali when it first rejected
the application for publication of the summons.
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When plaintiffs submitted the summons to the Orange
County Register for publication, the Register published it in the
Laguna News-Post, a regional newspaper produced by the
Register. Plaintiffs published the summons in the Laguna News-
Post on four dates in July and August 2012. The court
subsequently rejected plaintiffs’ request for entry of default
judgment because the publication failed to include a statement of
damages. Plaintiffs republished the summons in the Laguna
News-Post on four dates in November 2012.
4. Entry of Judgment
Plaintiffs then proceeded with their default prove-up. On
January 31, 2014, the trial court entered default judgment for
$1,940,506 in damages, which included $80,900 in legal fees and
costs, against Al Binali in plaintiffs’ favor.
5. Motion to Vacate
In September 2014, plaintiffs applied to enforce the
judgment in Canada, where Al Binali has resided since 2011. Al
Binali discovered an application to enforce plaintiffs’ judgment
filed with a Canadian court in December 2015. In the spring of
2016, Al Binali hired counsel to defend her in the proceedings.
She filed the motion to vacate or in the alternative set aside the
default judgment, and motion to quash service of summons on
February 6, 2017. Al Binali argued the judgment was void for a
number of reasons, including improper service by publication.
She argued that plaintiffs failed to publish the summons in the
newspaper designated by the court, asserting that the Laguna
Post (where the summons was published) had 100 times fewer
copies in circulation than the Orange County Register (the
periodical designated for publication by the court). She also
argued that plaintiffs failed to exercise diligence in serving her.
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Plaintiffs opposed the motion. There was no hearing on the
motion to vacate because defense counsel submitted on the
tentative rulings and waived oral argument.
6. Denial of Motion to Vacate
On May 1, 2017, the trial court denied the motion to vacate
or set aside the judgment, stating that “[d]efendant has not
demonstrated that the judgment is void on its face. Defendant
has also not satisfactorily demonstrated diligence in bringing the
motion.” Al Binali timely appealed.
DISCUSSION
Al Binali argues the judgment is void on its face and must
be vacated. We agree.
1. Facially Void Judgments: Applicable Principles
“The court may . . . on motion of either party after notice to
the other party, set aside any void judgment or order.” (Code Civ.
Proc., § 473, subd. (d).)2 Generally, defendants have six months
from entry of judgment to move to vacate. (§ 473, subd. (b).) But,
“[i]f the judgment is void on its face, then the six months limit set
by section 473 to make other motions to vacate a judgment does
not apply.” (National Diversified Services, Inc. v. Bernstein
(1985) 168 Cal. App. 3d 410, 414.) “ ‘A judgment or order is said to
be void on its face when the invalidity is apparent upon an
inspection of the judgment-roll.’ ” (Dill v. Berquist Construction
Co. (1994) 24 Cal. App. 4th 1426, 1441 (Dill); Trackman v. Kenney
(2010) 187 Cal. App. 4th 175, 181 [“This does not hinge on
evidence: A void judgment’s invalidity appears on the face of the
record.”].) In cases where there is no answer filed by the
defendant, the judgment roll includes: “the summons, with the
2 All subsequent statutory references are to the Code of Civil
Procedure.
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affidavit or proof of service; the complaint; the request for entry
of default with a memorandum indorsed thereon that the default
of the defendant in not answering was entered, and a copy of the
judgment; . . . and in case the service so made is by publication,
the affidavit for publication of summons, and the order directing
the publication of summons.” (§ 670; Dill, supra, at p. 1441 [“In a
case in which the defendant does not answer the complaint, the
judgment roll includes the proof of service.”].)
“When a court lacks jurisdiction in a fundamental sense,
such as lack of authority over the subject matter or the parties,
an ensuing judgment is void. [Citation.] To establish personal
jurisdiction, it is essential to comply with the statutory
procedures for service of process. [Citation.] Accordingly, ‘ “a
default judgment entered against a defendant who was not
served with a summons in the manner prescribed by statute is
void.” ’ ” (OC Interior Services, LLC v. Nationstar Mortgage, LLC
(2017) 7 Cal.App.5th 1318, 1330–1331.) When “the lack of
jurisdiction appears on the face of the judgment roll, . . . ‘the
judgment is for all purposes a nullity—past, present and
future.’ ” (Id. at p. 1331.) Void judgments are ineffective and
unenforceable. (County of San Diego v. Gorham (2010)
186 Cal. App. 4th 1215, 1226.) For that reason, an order
incorrectly denying relief from a void judgment is also void, as it
gives effect to the judgment. (Carlson v. Eassa (1997)
54 Cal. App. 4th 684, 691.)
2. Standard of Review
Citing cases involving motions to vacate facially valid
default judgments, plaintiffs assert that the standard of review is
abuse of discretion. (See Zamora v. Clayborn Contracting Group,
Inc. (2002) 28 Cal. 4th 249, 257; In re Marriage of Connolly (1979)
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23 Cal. 3d 590, 597–598.) These cases are inapt as they address
discretionary decisions made by the trial court based on evidence
outside the judgment roll.
As explained above, our decision is limited to review of the
judgment roll. The issue of whether a judgment is void on its face
is a question of law, which we review de novo. (Ramos v.
Homeward Residential, Inc. (2014) 223 Cal. App. 4th 1434, 1440
[de novo review to determine whether judgment void on its face
for improper service]; Sakaguchi v. Sakaguchi (2009)
173 Cal. App. 4th 852, 858.)
3. The Judgment is Void on its Face for Improper
Service
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.) “If there is any situation in
which strict compliance can reasonably be required, it is that of
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service by publication.” (County of Riverside v. Superior Court
(1997) 54 Cal. App. 4th 443, 450.)
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.3
4. Plaintiffs’ Arguments are Unpersuasive
Plaintiffs assert that Al Binali did not act diligently in
moving to vacate the default judgment. Yet, “a default that is
void on the face of the record when entered is subject to challenge
at any time irrespective of lack of diligence in seeking to set it
aside within the six-month period of section 473.” (Plotitsa v.
Superior Court (Kadri) (1983) 140 Cal. App. 3d 755, 761.)
Plaintiffs also argue they substantially complied with the
service by publication statute and according to the 1903
California Supreme Court case, Columbia Screw Co. v. Warner
Lock Co. (1903) 138 Cal. 445 (Columbia), substantial compliance
3 Although we do not decide this case based on plaintiffs’
failure to exercise due diligence to personally serve Al Binali, we
observe that plaintiffs’ efforts were questionable. Surprisingly,
plaintiffs made no attempt to locate Al Binali in Canada despite
being told in January 2012 that Al Binali lived in Canada (before
they even named her as defendant). Yet, some nine months after
entry of judgment, plaintiffs sought to enforce it in Canada,
where Al Binali resides. (See Carr v. Kamins (2007)
151 Cal. App. 4th 929, 936 [service by publication ineffective for
the plaintiff’s failure to exercise reasonable diligence].)
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is sufficient. (Id. at p. 446 [“The service of a summons by
publication is in derogation of the common law, and in order to
obtain such constructive service, the statute must be
substantially complied with and its mandates observed.”].)
Columbia solely addressed the sufficiency of the affidavit the
plaintiff used to procure an order for publication of the summons
on a foreign corporation. (Ibid.) The court’s statement that “the
statute must be substantially complied with and its mandates
observed” refers to repealed section 412. (Ibid.) The case did not
address compliance with section 415.50’s requirements for service
by publication, and subsequent cases, as we discuss, reject
substantial compliance in this context.
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 [“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;
Olvera v. Olvera (1991) 232 Cal. App. 3d 32, 41 (Olvera); Eagle
Electric Mfg. Co. v. Keener, supra, 247 Cal.App.2d at p. 251.) 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 [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
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statutory requirements for publication are plain on the face of the
judgment roll.
“Personal service remains the method of choice under the
statutes and the constitution.” (Olvera, supra, 232 Cal.App.3d at
p. 41.) Consistent with the notions of fair play and due process,
substituted service by publication is “a last resort” when
“reasonable diligence to locate a person in order to give him
notice before resorting to the fictional notice afforded by
publication” has been exercised. (Donel, Inc. v. Badalian (1978)
87 Cal. App. 3d 327, 332.) “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, supra,
54 Cal.App.4th at p. 450; Olvera, at p. 41 [“When substituted or
constructive service is attempted, strict compliance with the
letter and spirit of the statutes is required.”].) “In order to obtain
in personam jurisdiction by a form of constructive service, there
must be strict compliance with the requisite statutory
procedures.” (Tandy Corp. v. Superior Court (1981)
117 Cal. App. 3d 911, 913.) Plaintiffs were not compliant.
Plaintiffs also assert that the trial judge “ratified the
means of publication when he approved entry of default and
issued the subsequent judgment.” Plaintiffs cite no case law to
support this theory and we have not found any. “We are not
bound to develop appellants’ argument for them. [Citation.] The
absence of cogent legal argument or citation to authority allows
this court to treat the contention as waived.” (In re Marriage of
Falcone & Fyke (2008) 164 Cal. App. 4th 814, 830.) We find
plaintiffs’ ratification argument particularly unpersuasive, given
that plaintiffs admitted at oral argument they did not point out
to the court at the service and prove up hearings that the
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publication was in the Laguna News-Post, rather than the
Orange County Register. We cannot infer ratification of conduct
that was never brought to the trial court’s attention. Certainly
plaintiffs could have asked the trial court for permission to
publish in the Post-News. The court could have modified its
previous order. But, what plaintiffs could not do is raise this
ratification argument for the first time on appeal. Under these
circumstances, we can only speculate on what the trial court
might have done if plaintiffs had requested to publish in the
unauthorized newspaper. (See Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163 Cal. App. 4th 550, 564 [the Court of Appeal does not address
“issues raised for the first time on appeal which were not
litigated in the trial court”].)
Plaintiffs highlight the fact the publisher of the Orange
County Register, not plaintiffs, was the one who chose to publish
the summons in the Laguna News Post. The publisher’s failure
to print the summons in the authorized periodical did not relieve
plaintiffs of their duty to comply with the court’s order for service
by publication. Tellingly, plaintiffs did not correct the error or
demand compliance from the publisher when they printed the
summons for a second time to include the statement of damages.
A final point on service by publication in a newspaper not
authorized by the court: A party may not with impunity simply
ignore a court order even for professed “good” reasons. The logic
of the Court of Appeal in Sauer v. Superior Court (1987) 195
Cal. App. 3d 213, 229, in addressing a party’s disobedience to
discovery orders applies equally here: “ ‘A party may disagree
with a court order. He may believe it wrong-headed or a waste of
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time or picayunish—but he disregards it at his peril.’ ” (Sauer v.
Superior Court (1987) 195 Cal. App. 3d 213, 229.)
To the extent plaintiffs contend Al Binali must demonstrate
prejudice and show that she would have been served had the
summons been published elsewhere, they again fail to cite
authority for this principle. The service and the judgment are
void. It is the judgment that is at issue, not plaintiffs’ prejudice.
Defendant need not show more than that the judgment on its face
is a nullity. (See e.g., OC Interior Services, LLC v. Nationstar
Mortgage, LLC, supra, 7 Cal.App.5th at pp. 1330–1331.)
5. Plaintiffs’ Motion to Dismiss is Denied
Lastly, plaintiffs moved to dismiss Al Binali’s appeal based
on the disentitlement doctrine—an equitable tool “by which an
appellate court may stay or dismiss an appeal by a party who has
refused to obey the superior court’s legal orders.” (In re E.M.
(2012) 204 Cal. App. 4th 467, 474.) Plaintiffs assert that we
should dismiss her appeal because Al Binali did not appear for
the judgment debtor exam. Al Binali contends that she did not
appear at the judgment debtor exam because she was contesting
personal jurisdiction in the motion to vacate and did not want to
make a general appearance and thus waive her personal
jurisdiction argument. (See Mansour v. Superior Court (1995)
38 Cal. App. 4th 1750, 1757; Alioto Fish Co. v. Alioto (1994)
27 Cal. App. 4th 1669, 1688–1689 [appearance at judgment debtor
exam could constitute general appearance, waiving service
defect].) Because the judgment is void and the court never had
jurisdiction over Al Binali, we conclude that Al Binali’s failure to
appear at the judgment debtor examination does not warrant
dismissal of her appeal under the disentitlement doctrine. We
deny the motion.
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DISPOSITION
We reverse the trial court’s order denying the motion to
vacate, and remand for the trial court to vacate the judgment.
Defendant Rima Al Binali is awarded costs on appeal.
RUBIN, ACTING P. J.
WE CONCUR:
STRATTON, J.
DUNNING, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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