State Farm Mutual Automobile Ins. Co. v. Bajah CA2/5 ( 2024 )

Filed 10/29/24 State Farm Mutual Automobile Ins. Co. v. Bajah CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
STATE FARM MUTUAL B332069
AUTOMOBILE INSURANCE
COMPANY, (Los Angeles County
Super. Ct. No.
Plaintiff and Respondent, 19STCV31987)
v.
BRIAN BAJAH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michelle C. Kim, Judge. Affirmed.
Richardson, Fair & Cohen and Stephen Kalpakian for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Defendant and appellant Brian Bajah (Bajah) appeals from
the denial of his motion to quash service of summons and to set
aside a default judgment entered against him. We consider
whether substantial evidence supports the trial court’s finding
that plaintiff and respondent State Farm Mutual Automobile
Insurance Company (State Farm) exercised the diligence
necessary to justify service of the summons by publication.
I. BACKGROUND
On January 27, 2019, Bajah failed to stop his automobile at
a red light and collided with another vehicle driven by Wayne
Muramatsu (Muramatsu). The collision, which occurred at the
intersection of Venice Boulevard and Hill Street in Los Angeles,
rendered Muramatsu’s vehicle a total loss. State Farm,
Muramatsu’s insurer, investigated his claim, determined it was
covered under the terms of his policy, and paid him $31,399.13
for his loss. Nine months later, in September 2019, after
engaging in unsuccessful settlement discussions with Bajah’s
insurer, State Farm sued Bajah seeking subrogation.
Information collected at the time of the accident indicated
Bajah resided in the City of Torrance. In an effort to find Bajah’s
current residence, State Farm searched unsuccessfully for his
address on the Internet using his social security number and
telephone numbers. When a postal search indicated Bajah had
“moved” from his Torrance address, State Farm investigated
further using “skip-tracing” techniques and discovered two other
possible residences for Bajah: one in the City of Hawthorne and
one in the City of Castaic. On 21 occasions between September
2019 and February 2020, State Farm attempted to serve Bajah
2
personally at the three addresses in Los Angeles County it
identified—all without success.1
In June 2020, State Farm applied for and was granted an
order allowing service by publication in The Los Angeles
Independent, a weekly newspaper published in the County of Los
Angeles (the county of Bajah’s last known address). A copy of the
summons was published in the newspaper on July 16, 23, 30, and
August 6, 2020. Bajah’s default was entered on December 23,
2020. Six months later, the superior court entered a default
judgment for State Farm.
In November 2021, five months after entry of default
judgment, Bajah moved to quash the service of summons by
publication and to set aside the default judgment pursuant to
Code of Civil Procedure section 473.2 He argued he was not
properly served by publication for two principal reasons. First,
he maintained State Farm failed to exhaust all avenues before
seeking service by publication; according to Bajah, State Farm
should have, but did not, conduct a Department of Motor Vehicle
or voter registration search for his current address. Second,
Bajah contended the newspaper selected to effect service by
publication was inadequate for the task: The Los Angeles
Independent had a circulation of 32,600, which meant it was
“seen by only .003% to .008% of the population of Los Angeles
1
State Farm tried to serve Bajah three times at the
Torrance address, eight times at the Hawthorne address, and ten
times at the Castaic address.
2
Undesignated statutory references that follow are to the
Code of Civil Procedure.
3
City and County.”3 Bajah additionally argued the newspaper was
not distributed in the City of Hawthorne, where he lived for
approximately the last eight years.
In a supporting declaration, Bajah stated he had never
heard of The Los Angeles Independent. In addition, he declared
he had never been served with any legal process in connection
with State Farm’s lawsuit and had “not avoided service of process
of any kind.” Attached to his declaration was a redacted
photocopy of his current driver’s license, which showed he resided
in Hawthorne but did not show his street address.
Bajah’s motion was also supported by a declaration from
his attorney. Attached to his attorney’s declaration were
printouts of pages from different Internet websites regarding The
Los Angeles Independent and its parent company. The pages
from the parent company’s website included a map of the Los
Angeles area and a list of Los Angeles zip codes where its
publications were distributed.4 Among the listed zip codes was
the zip code displayed on the photocopy of Bajah’s driver’s
license.
3
Bajah stated he relied on information from the United
States Census Bureau but did not identify a particular document
or Internet page from which the proffered percentage figures
were derived. Bajah also did not submit any documentary
evidence to support his percentages claim or request the trial
court take judicial notice of any facts from sources of reasonably
indisputable accuracy.
4
The copy of the map included in Bajah’s appendix is largely
illegible.
4
State Farm opposed defendant’s motion for relief. State
Farm argued it exercised reasonable diligence in attempting to
locate and serve Bajah. Among other things, State Farm
recounted how it attempted to personally serve Bajah on 21
occasions at three different addresses, including one at which the
United States Post Office affirmed he received mail. State Farm
also observed that Bajah’s own supporting exhibits showed that
the Los Angeles Independent was distributed in Hawthorne and
in the zip code identified on his driver’s license.
In his reply, Bajah argued the default judgment was void
on its face because State Farm chose a newspaper that was least
likely to give him actual notice. He further argued State Farm
misread his supporting exhibits about where The Los Angeles
Independent was circulated and re-asserted that those exhibits
showed the newspaper was not distributed in Hawthorne.5
On April 12, 2023, the trial court held a hearing on Bajah’s
motion to quash service of summons and set aside the default
judgment.6 Because Bajah’s argument that he never received
actual notice of the lawsuit prior to entry of the default judgment
was raised for the first time in his reply papers, the court
continued the hearing on the motion so that the parties could
brief the issue.
5
The copy of the distribution map submitted with Bajah’s
reply is largely illegible.
6
The record on appeal does not include a transcript of the
April 12, 2023, hearing or a minute order memorializing the
proceedings. It includes only an unsigned copy of a tentative
order dated April 11, 2023, continuing the motion.
5
In its supplemental opposition, State Farm argued Bajah
had actual notice of the lawsuit prior to entry of default
judgment. State Farm related how it had remained in
communication with Bajah’s insurer after filing suit and
repeatedly sent copies of the complaint to Bajah’s insurer at the
latter’s request. In addition to engaging in periodic settlement
discussions, State Farm’s attorneys also kept Bajah’s insurer
informed of developments in the case. For example, in April
2020, State Farm’s lawyers advised the company was proceeding
with service by publication (and later sent proof of publication to
Bajah’s insurer). On March 3, 2021, counsel for State Farm
advised Bajah’s insurer the company had submitted a “Default
Judgment package” to the trial court. On April 5, 2021, more
than two months before entry of default judgment, Bajah’s
insurer called State Farm’s counsel to advise that Bajah was
unable to contribute to a settlement of the lawsuit. Relying on
that April 5 communication from Bajah’s insurer, State Farm
argued Bajah had actual notice of the lawsuit prior to entry of
default judgment.7
Bajah filed a supplemental reply in support of his motion to
quash. Bajah contended the attorney declaration supporting
State Farm’s supplemental opposition should be stricken. Among
other things, Bajah claimed the attorney lacked personal
knowledge of the facts asserted in his declaration and that his
7
In support of its supplemental opposition, State Farm
submitted a declaration from one of its attorneys. The attorney
described in detail the procedures used, and records kept, by his
firm in connection with client-related communications. The
attorney did not submit any exhibits with his declaration.
6
statements constituted inadmissible hearsay. Bajah did not file
concurrently with his supplemental reply a set of formal
evidentiary objections to specific passages in the declaration
submitted by State Farm’s attorney.
On May 22, 2023, the trial court held the continued hearing
on Bajah’s motion to quash service of summons and set aside the
default judgment.8 After hearing oral argument from the parties,
the court adopted its tentative ruling as its final order and denied
the motion.
The trial court reasoned service of summons by publication
was warranted because State Farm exercised the diligence
necessary to justify resort to such service. The court additionally
found State Farm’s selection of The Los Angeles Independent was
reasonably calculated to provide notice.
The court declined to set aside the default judgment
because Bajah did not meet his burden to show his purported
lack of actual notice was not caused by avoidance of service or
inexcusable neglect; as the court explained, Bajah’s declaration
stated only that “‘he had not avoided service.’ [Citation.] He does
not offer evidence regarding inexcusable neglect.” The court
additionally found Bajah had actual notice of the lawsuit prior to
the judgment’s entry as established by the evidence regarding,
among other things, the April 5, 2021, call from Bajah’s insurer
advising that Bajah could not contribute to a settlement. Finally,
the court ruled (a) State Farm’s attorney established the
necessary foundation for his testimony about the April 5, 2021,
8
The record on appeal does not include a transcript of the
May 22, 2023, hearing; it includes only a copy of the associated
minute order.
7
call and (b) the advisement made by Bajah’s insurer was
admissible as an authorized admission.
II. DISCUSSION
Bajah maintains reversal is required because substantial
evidence supported his motion to quash and the default judgment
was therefore void as a matter of law. Bajah misapprehends the
showing that must be made on appeal from the trial court’s order.
The issue before us is not whether substantial evidence supports
his motion, but whether substantial evidence supports the trial
court’s ruling allowing service by publication. So correctly
framed, there is such evidence. State Farm searched for Bajah’s
current address utilizing multiple resources and, after it
identified three possible residences, it repeatedly attempted to
serve him at each of those residences. Bajah’s remaining
contentions of error are forfeited for failure to raise them in the
trial court, to support them with reasoned argument, and to back
them with an adequate record for review.
A. Service of Process and Reasonable Diligence
“‘[C]ompliance with the statutory procedures for service of
process is essential to establish personal jurisdiction. [Citation.]
Thus, a default judgment entered against a defendant who was
not served with a summons in the manner prescribed by statute
is void. [Citation.]’ [Citation.]” (Ellard v. Conway (2001) 94
Cal.App.4th 540, 544; accord, Calvert v. Al Binali (2018) 29
Cal.App.5th 954, 961-962.)
Section 415.10 et seq. governs the manner of service of a
summons. If personal service cannot be effected and substitute
service proves impossible, service may be effected by publication
8
if approved by the trial court. (§ 415.50, subd. (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 [section 415.10 et seq.] . . .”]; Watts v.
Crawford (1995) 10 Cal.4th 743, 748-749 & fn. 5.)
“‘The term “reasonable diligence” . . . denotes a thorough,
systematic investigation and inquiry conducted in good faith by
the party or his agent or attorney. [Citations.]’” (Watts, supra,10 Cal.4th at 749, fn. 5.) Exhaustion of every available avenue to
discover the current address of the party to be served is not
required, however. (Ellard, supra, 94 Cal.App.4th at 545.) “‘Two
or three attempts to personally serve a defendant at a proper
place ordinarily qualifies as “‘“reasonable diligence.”’”
[Citation.]’” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750;
accord, Rios v. Singh (2021) 65 Cal.App.5th 871, 877, 881
[reasonable diligence established where plaintiff hired two
private investigators “to locate and serve” the defendant and they
made “numerous” attempts [i.e., four attempts over three days] to
effectuate service].)
If the plaintiff demonstrates reasonable diligence, the trial
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.” (§ 415.50, subd. (b); see
also Judicial Council of Cal., com., foll. § 415.50 [“Publication of
summons must be made in a named newspaper of general
circulation [citation], published in this state [citations], for the
period prescribed by Section 6064 of the Government Code (once
9
a week for four successive weeks)”]9.) “Although section 415.50
provides that the summons must be published in a designated
newspaper that is ‘most likely to give actual notice’ to the
defendant, it does not require that the defendant actually see the
publication.” (Rios, supra, 65 Cal.App.5th at 882.) In fact,
California courts have recognized that service by publication is
unlikely to result in actual notice. (See, e.g., Watts, supra, 10
9
The Government Code provides two different definitions of
a “newspaper of general circulation.” (Gov. Code, §§ 6000
[defining a “‘newspaper of general circulation’” as one “published
for the dissemination of local or telegraphic news and intelligence
of a general character, which has a bona fide subscription list of
paying subscribers, and has been established, printed and
published at regular intervals in the State, county, or city where
publication, notice by publication, or official advertising is to be
given or made for at least one year preceding the date of the
publication, notice or advertisement”], 6008, subd. (a) [“a
‘newspaper of general circulation’” must meet all of the following
criteria: “[¶] (1) It is a newspaper published for the dissemination
of local or telegraphic news and intelligence of a general
character, which has a bona fide subscription list of paying
subscribers and has been established and published at regular
intervals of not less than weekly in the city, district, or public
notice district for which it is seeking adjudication for at least
three years preceding the date of adjudication. [¶] (2) It has a
substantial distribution to paid subscribers in the city, district, or
public notice district in which it is seeking adjudication. [¶] (3) It
has maintained a minimum coverage of local or telegraphic news
and intelligence of a general character of not less than 25 percent
of its total inches during each year of the three-year period. [¶]
(4) It has only one principal office of publication and that office is
in the city, district, or public notice district for which it is seeking
adjudication”].)
10
Cal.4th at 749, fn. 5 [“it is generally recognized that service by
publication rarely results in actual notice”]; County of Riverside v.
Superior Court (1997) 54 Cal.App.4th 443, 450 [“[w]e think it safe
to say that there is really little expectation that a defendant so
served will in fact acquire actual notice from the publication”].)
Giorgio v. Synergy Management Group, LLC (2014) 231
Cal.App.4th 241 illustrates circumstances in which a reviewing
court determined a trial court authorization for service by
publication was proper. In that case, the plaintiff (1) searched for
any addresses associated with the defendant; (2) performed a
search online and was able to locate another address associated
with the defendant; (3) attempted to serve the defendant by mail
at the newly located address “but received a ‘Return to Sender
Unclaimed’ envelope from the United States Postal Service”; (4)
verified with the United States Postal Service that the defendant
still received mail at the newly located address; and (5)
unsuccessfully attempted personal service at the newly located
address seven times, using two different process servers. (Id. at
248-249; compare Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42-
43 [service by publication improper where there was no
indication plaintiff employed “any of the usual means” to find
defendant (e.g., searching phone books, etc.)].) The Giorgio court
also held selection of the Los Angles Daily Journal as a
newspaper most likely to give actual notice was appropriate
because plaintiff “had reason to know [defendant] resided at” a
Los Angeles address, so “substantial evidence
supported . . . election of a newspaper in Los Angeles.” (Giorgio,
supra, 231 Cal.App.4th at 249; compare Olvera, supra, 232
Cal.App.3d at 42-43 [service by publication improper because
although plaintiffs “repeatedly” acknowledged defendant “was no
11
longer in Riverside and admitted . . . she received mail in Pismo
Beach,” they served her by publication in a Riverside
newspaper].)
“Whether the plaintiff exercised the diligence necessary to
justify resort to service by publication depends on the facts of the
case. [Citation.] 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. [Citation.]
We review a trial court’s finding that the defendant could not
with reasonable diligence be served by a means superior to
publication for substantial evidence. [Citation.]” (Rios, supra, 65
Cal.App.5th at 880-881.)
B. Substantial Evidence Supports the Denial of the
Motion to Quash
The record shows State Farm conducted a systematic
investigation to determine Bajah’s current address. It performed
Internet searches, utilized skip-tracing techniques, and availed
itself of services offered by the United States Postal Service.
After identifying three possible addresses where Bajah might be
residing, State Farm attempted over a course of several months
to personally serve Bajah at each of those addresses and did so
repeatedly (more than 20 separate attempts). Such perseverance
constitutes a good faith attempt at personal service.
The record also shows The Los Angeles Independent was a
newspaper of general circulation within the county of Los Angeles
with a bona fide and not insubstantial number of paying
subscribers. According to the materials submitted in support of
Bajah’s motion to quash, The Los Angeles Independent was
distributed throughout Los Angeles County. Without knowing
12
the city in the county where Bajah was residing—Torrance,
Hawthorne, Castaic or somewhere else—State Farm’s selection of
the Los Angeles Independent was not unreasonable given its area
of distribution. Although selecting a newspaper with greater
circulation might have made the question less close of a call, we
see no basis to disturb the trial court’s conclusion that service by
publication in the Los Angeles Independent was sufficient.
C. Bajah’s Remaining Arguments Are Forfeited
Bajah contends State Farm had an ethical duty to advise
Bajah’s insurer it intended to seek a default judgment and failed
to honor that duty.10 Bajah forfeited this contention by failing to
raise it in the trial court. (Richey v. AutoNation, Inc. (2015) 60
Cal.4th 909, 920, fn. 3 [argument forfeited for failure to raise it in
the trial court].) In addition, Bajah argues the trial court erred
when it failed to strike the declaration by State Farm’s counsel in
support of its supplemental opposition. Review of this argument
is unwarranted because it is insufficiently presented (Bajah does
not even specify which portions of the declaration he believes
should have been stricken) and because we have no adequate
record to evaluate it. (Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956; In re Marriage of Falcone &
10
In making this argument, Bajah does not address evidence
in the record showing that three months prior to the entry of
default judgment State Farm’s counsel advised Bajah’s insurer it
had submitted a “Default Judgment package” to the trial court.
In addition, Bajah relies on purported events at the continued
hearing but, as discussed in more detail post, has not provided a
transcript of that hearing.
13
Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to
develop appellants’ argument for them”]; see also Denham v.
Superior Court (1970) 2 Cal.3d 557, 564; Rhule v. WaveFront
Technology, Inc. (2017) 8 Cal.App.5th 1223, 1229, fn. 5; Southern
California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.)
DISPOSITION
The judgment is affirmed. All parties are to bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
14