Searles v. Archangel

Filed 1/22/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
QUEEN SEARLES, B296011
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18PDRO01062)
v.
MICHAEL ARCHANGEL,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Amy Pellman, Judge. Affirmed.
Queen Searles, in pro. per., for Plaintiff and Appellant.
No appearance by Defendant and Respondent.
___________________________
The superior court dismissed Queen Searles’s petition for a
civil harassment restraining order when she was unable to
personally serve Michael Archangel with a copy of the petition
and notice of hearing as required by Code of Civil Procedure
section 527.6, subdivision (m).1 On appeal Searles argues the
court erred in denying her motion to waive traditional service
and allow her to serve Archangel through social media. Although
we acknowledge the practical merit to Searles’s request, the
superior court properly concluded it was obligated to follow
section 527.6’s express requirement for personal service.
Accordingly, we affirm the order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Petition for Restraining Order and Initial Hearing
Dates
Searles, self-represented in the superior court as she is on
appeal, filed a request for a civil harassment restraining order on
July 23, 2018 using mandatory Judicial Council form CH-100,
identifying Archangel as the person from whom protection was
sought. In the lines for Archangel’s address Searles wrote,
“None.”
Searles alleged that, while she was in her car in a parking
lot near a Starbucks in the Burbank Empire Center on July 14,
2018, Archangel threatened her “us[ing] a wicked looking stick to
perform his personal form of Martial Arts, which he calls ‘Tae
Kan Kick Yo Ass’ or [‘]Tae Kick Yo Ass.’” Checking the section of
the form requesting she be allowed to give less than five days’
notice of hearing, Searles wrote, “Petitioner does not know how to
1 Statutory references are to this code unless otherwise
stated.
2
contact the Stalker, Michael (Yahziel) Archangel, coupled with
the fact that an Empire Center Security Supervisor stated that
the respondent is ‘smart enough to know when & how long to
[stay] away.’ The stalker may stay away long enough to avoid
being served prior to the scheduled court date as Petitioner told
him that she would be filing on July 17, 2018 or as soon
thereafter as possible. Petitioner is concerned that he may not
come to any of the Starbucks locations where she is known to
frequent for a while as he did in June 2018.” Searles included in
an attachment to the petition an extended narrative of
Archangel’s threatening conduct, as well as photographs of what
she described as his intimidating actions and gestures.
The court issued a temporary restraining order (TRO) on
the same day as the petition was filed. In the portion of the TRO
form filled out in advance by Searles, Archangel’s home address
was listed as “unknown/homeless”; and he was described as an
“unknown vagabond-stalker.” The order authorized service on
Archangel by the sheriff or marshal without charge because it
was based on a credible threat of violence or stalking. The
hearing on Searles’s petition was scheduled for August 14, 2018.
Searles moved for a continuance of the August 14, 2018
hearing, stating she had been unable to serve Archangel. She
explained, Archangel “is homeless and avoids the area when he is
aware that someone is looking to bring charges against him.”
The court continued the hearing to September 6, 2018 and
ordered that the previously issued TRO would remain in effect
until the continued hearing date. Searles again moved to
continue the hearing on September 6, 2018 when she remained
unable to serve Archangel. The court granted the request,
3
continued the hearing to September 27, 2018 and ordered the
TRO to remain in full force and effect until the new hearing date.
2. Searles’s Motion To Waive Traditional Service
Together with another request to continue the hearing, on
September 27, 2018 Searles moved to waive traditional service
and for authorization to serve Archangel by social media.
Specifically, stating that Archangel followed her public Facebook,
YouTube and Twitter postings, Searles requested leave to serve
him by simultaneously posting the documents “to the Scribd
website and linked to Facebook, Twitter and YouTube.”
In her supporting declaration Searles stated Archangel was
intentionally making himself unavailable and described the
efforts she had made to effect personal service, primarily
requesting that employees and customers at various businesses
where Searles had seen Archangel serve him with her papers if
they saw him near their stores.
In a legal memorandum Searles quoted several out-of-state
cases in which service of process by social media had been
permitted, including Baidoo v. Blood-Dzrako (N.Y. Sup. Ct. 2015)
48 Misc.3d 309 [5 N.Y.S.3d 709] in which a New York family law
court authorized service of the summons in a divorce action
through a direct message to the defendant’s Facebook account (he
had no email address), a decision based on state statutes allowing
a court to authorize an alternative method of service if a
sufficient showing had been made that personal service and
traditional substitute service would be impractical and the
method proposed was reasonably calculated to provide the
defendant with actual notice of the pendency of the action. In
reaching this conclusion, the court rejected service by publication
as a viable option, explaining, “[I]t is almost guaranteed not to
4
provide a defendant with notice of the action for divorce, or any
other lawsuit for that matter.” (Id. at p. 316.) The court
continued, “Under the circumstance presented here, service by
Facebook, albeit novel and nontraditional, is the form of service
that most comports with the constitutional standards of due
process. Not only is it reasonably calculated to provide defendant
with notice that he is being sued for divorce, but every indication
is that it will achieve what should be the goal of every method of
service: actually delivering the summons to him.” (Id. at p. 317.)
Searles asserted that Archangel, like the defendant in the
Baidoo case, could not be personally served and, because no one
knew where he lived, he also could not be served by mail.
Accordingly, she argued the court had discretion pursuant to
section 413.30 to authorize service in a different manner provided
it was reasonably calculated to give actual notice to the party to
be served, as she asserted use of social media would be in this
case.
At the hearing on September 27, 2018 the court, after
hearing Searles’s description of what she had done to date in her
efforts to effect personal service, denied the motion to allow
service by an alternative method and directed her to keep trying
to serve Archangel personally, as required by section 527.6,
subdivision (m). The court explained the Los Angeles County
Sheriff’s Department could assist her and suggested she ask for
help at the sheriff’s office located in the courthouse. The court
continued the hearing to October 18, 2018 and ordered the TRO
to remain in effect until that date.2
2 The court on September 27, 2018 also granted Searles’s
request for a fee waiver, which included a waiver of any sheriff’s
fees for serving the petition.
5
3. Searles’s Renewed Motion and the Ultimate Dismissal of
Her Petition Without Prejudice
With her October 18, 2018 request to continue the hearing
date, Searles again stated Archangel could not be personally
served and explained the sheriff had attempted service on
October 1, 2018 at the Starbucks where Archangel was most
often seen, but had returned the documents marked, “Not
Found.” The hearing was continued to November 29, 2018. The
TRO remained in full force and effect.3
On November 29, 2018 Searles renewed her motion for
authorization to serve Archangel by social media, providing the
court with a slightly modified version of the supporting
documents she had previously filed. At the hearing the court
denied Searles’s request to present witnesses to testify as to the
difficulty of finding Archangel in order to personally serve him
and denied her request for service by social media as
unauthorized by the Code of Civil Procedure. The court stated it
would give her one final opportunity to effect personal service on
Archangel, continued the hearing to January 31, 2019 and
extended the TRO through the hearing date.
The court on January 31, 2019, noting that Archangel had
not been personally served as required, dismissed Searles’s
petition for a civil harassment restraining order without
prejudice and dissolved the TRO. The court explained to Searles,
3 On October 29, 2018 Commissioner Timothy Martella, who
had presided over the proceedings subsequent to issuance of the
TRO, accepted Searles’s peremptory challenge pursuant to
section 170.6, filed October 10, 2018, and ordered the case
reassigned to another court for the hearing on November 29,
2018.
6
if she still was concerned about being harassed, she could file
another petition and request for a TRO, adding, “If it has merit,
then it will get granted and that will give you some more time to
have him served. If you can’t have him served, then you can’t.”4
DISCUSSION
1. The Developing Law of Service by Social Media
As discussed, in Baidoo v. Blood-Dzrako, supra, 48 Misc.3d
309, cited by Searles, a New York family law court authorized
service of the summons and complaint in a divorce case pursuant
to state statutes generally allowing service “in such manner as
the court, upon motion without notice, directs,” if service is
“impracticable” by traditional methods including personal service
and substitute service. (N.Y. CPLR § 308(5).) Similarly, in K.A.
v. J.L. (2016) 450 N.J. Super. 247 the court approved service of a
complaint and order to show cause via Facebook pursuant to
rule 4:4-3(b) of the New Jersey Rules of Court, which permits the
court to authorize an alternative method of service if the
4 Searles on January 31, 2019 moved to vacate the orders
entered on September 27, 2018 and November 29, 2018. As to
the earlier order, Searles argued Commissioner Martella should
have granted the challenge for cause she filed on October 29,
2018, rather than her earlier filed peremptory challenge, and the
September 27, 2018 order denying her motion to waive
traditional service was invalid because he was biased against her.
Any challenge to Commissioner Martella’s failure to grant her
motion to disqualify him for cause, however, is not reviewable on
appeal. (People v. Hull (1991) 1 Cal.4th 266, 268.) As to the later
order, Searles contended Judge Dorothy Shuba, who presided at
the November 29, 2018 hearing and denied her renewed motion,
did not give her a fair hearing. The court (Judge Amy Pellman)
did not rule on the motion before dismissing the case.
7
plaintiff’s good faith attempts to effect personal service are
unsuccessful: “If service cannot be made by any of the modes
provided by this rule, any defendant may be served as provided
by court order, consistent with due process of law.” (See also
WhosHere, Inc. v. Orun (E.D.Va. Feb. 20, 2014, No. 1:13-CV-
00526-AJT-TRJ) 2014 U.S.Dist. Lexis 22084 [authorizing service
of summons and complaint on a foreign defendant by email and
social networking websites identified by defendant as belonging
to him].)
Texas has taken authorization of service of process by
social media one step further. In 2019 the Texas Legislature
directed that state’s supreme court to “adopt rules to provide for
the substituted service of citation by an electronic communication
sent to a defendant through a social media presence.” (Tex. Civ.
Prac. & Rem. Code, § 17.033, subd. (b).) In response, the Texas
Supreme Court on August 21, 2020 approved amendments to
rule 106, subdivision (b), of the Texas Rules of Civil Procedure,
effective December 31, 2020, to provide, “Upon motion supported
by a statement—sworn to before a notary or made under penalty
of perjury—listing any location where the defendant can probably
be found and stating specifically the facts showing that service
has been attempted under (a)(1) [personal service] or (a)(2)
[registered or certified mail] at the location named in the
statement but has not been successful, the court may authorize
service: [¶] . . . [¶] (2) in any other manner, including
electronically by social media, email, or other technology, that the
statement or other evidence shows will be reasonably effective to
give the defendant notice of the suit.” The rule’s comment
explains, “Amended Rule 106(b)(2) clarifies that a court may, in
proper circumstances, permit service of citation electronically by
8
social media, email, or other technology. In determining whether
to permit electronic service of process, a court should consider
whether the technology actually belongs to the defendant and
whether the defendant regularly uses or recently used the
technology.”5
As summarized in a recent law review note, “Traditional
methods of service of process are preferred, but are not always
practicable. When a defendant cannot be reached through
traditional methods, judges should use their discretion and allow
alternative service by social media in appropriate cases. Current
methods of alternative service, such as publication, are not
efficient or effective. By allowing alternative service of process
via social media in certain cases, the defendant is much more
likely to receive actual notice in a cost-effective manner.” (Davis,
Social Media: A Good Alternative, for Alternative Service of
Process (2020) 52 Case Western Reserve J.Internat. Law 573.)
Commentators who support permitting courts to authorize
service of process through social media in appropriate
circumstances, however, have articulated several important
5 According to the National Center for State Courts, Texas
was not the first state to put into its rules such a provision.
Rule 4(e) of the Alaska Rules of Civil Procedure permits a litigant
to serve process through posting to the court’s legal notice
website or to a social media account once the litigant has made a
diligent effort to serve process by certified mail/restricted
delivery/return receipt and/or via a process server. (See NCSC,
New Texas Rules Explicitly Permit Service of Process Via Social
Media (Aug. 27, 2020) [as of
Jan. 22, 2021], archived at.)
9
limitations on its use. “First, the social media site itself must
provide a platform consistent with service of process. This means
that the site should offer a non-connected user a means of
contacting another user through a private message. [fn. omitted.]
The messaging feature of the site must also have the ability to
include attachments in the message so that the summons and the
complaint can be attached and sent in the message. . . . [¶]
Second, because a question will likely be raised about whether
the account belongs to the defendant, the plaintiff must make
reasonable efforts to verify the account through corroboration of
the information contained in it. . . . [¶] Third, in order to
establish timeliness of notice via social media, there must be
evidence of the defendant’s use of the site, such as status
updates, postings on others’ walls, connecting with other users, or
similar activity. . . . If frequency of use cannot be shown or the
user’s account has been set to private, service would not be
permissible.” (Knapp, #serviceofprocess @socialmedia: Accepting
Social Media for Service of Process in the 21st Century (2014)
74 La. L.Rev. 547, 576; see Davis, Social Media: A Good
Alternative, for Alternative Service of Process, supra, 52 Case
Western Reserve J.Internat. Law at pp. 590-593 [noting issues
related to authenticity of the social media account to which
service was directed]; Upchurch, “Hacking” Service of Process:
Using Social Media to Provide Constitutionally Sufficient Notice
of Process (2016) 38 U. Ark. Little Rock L.Rev. 559, 580-590
[explaining to be constitutionally sufficient social media notice
must be directed to the proper person, conspicuous and verifiable
and must permit sufficient access to the summons and
complaint].)6
6 Notably, Searles’s motion sought leave to serve Archangel
10
The question before us, however, is not whether it would be
a sound policy development to permit the superior court to
authorize service by social media, at least in those circumstances
where service by publication in a newspaper is now deemed
sufficient, let alone whether it should be permitted in civil
harassment restraining order cases, where personal service of the
petition and notice of hearing is now required. If it were, our
answer to the first of those questions would be a qualified yes. As
Justice Cooper wrote in Baidoo, “[A] concept should not be
rejected simply because it is novel or nontraditional. This is
especially so where technology and the law intersect. In this age
of technological enlightenment, what is for the moment
unorthodox and unusual stands a good chance of sooner or later
being accepted and standard, or even outdated and passé.”
(Baidoo v. Blood-Dzraku, supra, 48 Misc.3d at pp. 313-314.)
We encourage the Legislature and the Judicial Council,
which have already authorized extensive use of electronic service
of notice (see Code Civ. Proc., § 1010.6; Cal. Rules of Court,
rule 2.251; see also Prob. Code, § 1215, subd. (c)), to consider
developing pilot programs to test the efficacy of utilizing new
technologies as an approved method of service of process. But as
the superior court properly ruled in this case, current law
requires personal service of the petition, TRO and notice of
hearing in civil harassment restraining order cases and does not
permit the court to approve alternative methods of service.
by posting the petition and notice of hearing on her own social
media platforms, not by directing it to Archangel’s sites, which
poses different, but equally difficult, issues of verification of
receipt (that is, of actual notice).
11
2. The Service Requirement in Civil Harassment
Restraining Order Cases
Section 527.6, subdivision (a), permits a person who has
suffered harassment as defined in the statute to seek an ex parte
TRO and, after notice and a hearing, a protective order
prohibiting harassment for up to five years (frequently referred to
as a “permanent” restraining order).7 Section 527.6,
subdivision (g), provides a hearing must be held on the petition
within 21 days, or, if good cause is shown, within 25 days from
the date a TRO has been granted or denied, although
subdivision (p)(1) authorizes the court to grant a continuance of
the hearing on the petition on a showing of good cause.
Subdivision (m) provides, “Upon the filing of a petition under this
section, the respondent shall be personally served with a copy of
the petition, temporary restraining order, if any, and notice of
hearing of the petition. Service shall be made at least five days
before the hearing. The court may for good cause, on motion of
the petitioner, or on its own motion, shorten the time for service
on the respondent.” (See Cal. Rules of Court, rule 3.1160(c) [“The
request for a protective order, notice of hearing, and any
temporary restraining order, must be personally served on the
respondent at least five days before the hearing, unless the court
for good cause orders a shorter time. Service must be made in
the manner provided by law for personal service of summons in
civil actions”].)
7 The restraining order may be renewed for a duration of no
more than five additional years without a showing of any further
harassment since the issuance of the original order. (§ 527.6,
subd. (j)(1).)
12
3. Section 413.30 Does Not Authorize Alternative Methods
of Service in Civil Harassment Restraining Order Cases
Section 413.30 provides, “Where no provision is made in
this chapter[8] or other law for the service of summons, the court
in which the action is pending may direct that summons be
served in a manner which is reasonably calculated to give actual
notice to the party to be served and that proof of such service be
made as prescribed by the court.” Searles argued in the superior
court, and contends again on appeal, that, given her inability to
effect personal service on a homeless respondent who was
actively evading service by staying away from locations he
usually visited, section 413.30 authorized the court to allow
service by social media as an alternative that was reasonably
calculated to give actual notice of the case to Archangel.
8 Chapter 4 of Part 2, Title 5, of the Code of Civil Procedure,
in which section 413.30 is located, provides for service of
summons in civil actions. Section 413.10 states, “Except as
otherwise provided by statute, a summons shall be served on a
person: [¶] (a) Within this state, as provided in this chapter.”
Sections 415.10 through 415.95, also part of the chapter, describe
the various permissible modes of service of summons, including
personal delivery to the person to be served (§ 415.10); under
defined circumstances, leaving a copy with a competent person at
the home of the person to be served and thereafter mailing copies
to that address, generally known as “substitute service” (§ 415.20,
subd. (b)); mail with an acknowledgement-of-receipt form to be
signed and returned (§ 415.30); and publication in a newspaper
“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” (§ 415.50).
13
Searles’s position arguably finds support in unpublished
United States District Court opinions that have construed
section 413.30 as authorizing alternative methods of service of a
summons, specifically by email, when traditional methods have
proved ineffective. For example, in Beqa Lagoon Support
Services v. Hasselman (S.D.Cal., Oct. 26, 2020, No. 20-CV-968
JLS (AHG)) 2020 U.S.Dist. Lexis 198751, the court, after noting
that rule 4(e)(1) of the Federal Rules of Civil Procedure
(28 U.S.C.) (rule 4(e)(1)) authorizes service of process on an
individual within the United States in conformity with the law of
the state in which the district court is located, ruled
section 413.30 permitted service by email after the plaintiff’s
attempts to effect service by personal delivery through a certified
process server and the sheriff and by certified mail and Federal
Express had been unsuccessful, provided the plaintiff
demonstrated email was reasonably calculated to provide actual
notice of the pending case. Similarly, in Twitch Interactive, Inc.
v. Johnston (N.D.Cal., Jan. 19, 2017, No. 16-CV-03404-BLF) 2017
U.S.Dist. Lexis 7787 the court granted the plaintiff’s motion to
serve defendants at their email addresses pursuant to rule 4(e)(1)
and section 413.30, finding that the plaintiff had made
substantial efforts to personally serve the defendants with the
summons and complaint and that service by email was
reasonably calculated to provide actual notice. (Accord,
Facebook, Inc. v. Banana Ads, LLC (N.D.Cal., Mar. 27, 2012,
No. C-11-3619 YGR) 2012 U.S.Dist. Lexis 42160 [authorizing
email service of process pursuant to rule 4(e)(1) and
section 413.30]; see also Floyd v. Saratoga Diagnostics, Inc.
(N.D.Cal., June 5, 2020, No. 20-CV-01520-LHK) 2020 U.S.Dist.
Lexis 100279 [certified mail authorized as alternative method for
14
service of summons pursuant to rule 4(e)(1) and section 413.30
when personal service was unsuccessful].)
In marked contrast to these decisions, the district court in
Federal Insurance Company v. Caldera Medical Inc. (C.D.Cal.,
Apr. 8, 2015, No. 2:15-CV-00393-SVW-PJW) 2015 U.S.Dist.
Lexis 187119 rejected the plaintiff’s request, made pursuant to
rule 4(e)(1) and section 413.30, to authorize an alternative
method of service of a summons—one not expressly authorized by
the Code of Civil Procedure—explaining section 413.30 “permits a
court to direct service ‘in a manner which is reasonably
calculated to give actual notice to the party to be served’ so long
as ‘no provision is made in this chapter or other law for the
service of summons.’ [Citation.] The problem is that the Court
just discussed the provisions providing for service of summons
upon authorized agents. See Cal. Code Civ. P. § 416.90.[9] Thus,
the Court cannot invoke Section 413.30 to circumvent
Section 416.90.” (Accord, Oh My Green, Inc. v. Cuffe (C.D. Cal.,
Mar. 20, 2020, No. CV-20-2509 PA PVCx) 2020 U.S.Dist. Lexis
107056 [denying plaintiff’s request to serve defendant with the
summons, complaint and moving papers in support of a TRO
through email; “section 413.30 does not authorize service by
alternative means when California law provides other methods
for service”].)
We agree with the analysis of the district courts that
decided Federal Insurance Company and Oh My Green, Inc. As
discussed, the Legislature has expressly mandated that the
9 Section 416.90 provides, “A summons may be served on a
person not otherwise specified in this article by delivering a copy
of the summons and of the complaint to such person or to a
person authorized by him to receive service of process.”
15
respondent in a proceeding for a civil harassment restraining
order be provided notice of the hearing, together with a copy of
the petition and any TRO, only through personal service.
(§ 527.6, subd. (m).) Thus, section 413.30 is inapplicable in this
situation: The necessary prerequisite for the court to authorize
an alternative method of service—that “no provision is made in
this chapter or other law for the service for summons”—is
unsatisfied. Section 413.30 does not provide, as does, for
example, section 308, subdivision (5), of the New York Civil
Practice Law and Rules, that the court may order an alternative
method of service if the procedures expressly identified by the
Legislature prove impractical. Nor does section 527.6 state
personal service is preferred, but other means of service may be
employed if personal service is not feasible.
Provisions of the Probate Code make clear that we cannot
simply attribute to legislative oversight the absence of any
provision authorizing the court to utilize Code of Civil Procedure
section 413.30 if personal service in a restraining order case has
proved unsuccessful. Probate Code section 1215 provides for
service of notices and other papers in probate proceedings
through delivery by mail or personal delivery (and by electronic
delivery with consent). However, Probate Code section 1212
expressly directs the court to section 413.30 and authorizes
alternative methods of service if neither of those methods is
feasible: “Unless the court dispenses with the notice, if the
address of the person to whom a notice or other paper is required
to be delivered pursuant to [Probate Code] Section 1215 is not
known, notice shall be given as the court may require in the
manner provided in Section 413.30 of the Code of Civil
16
Procedure.”10 The Legislature’s decision not to include a
comparable provision for alternate forms of service in
section 527.6 precludes our rewriting the statute to allow service
other than by personal delivery. (See People v. Leal (2004)
33 Cal.4th 999, 1008 [“‘It is our task to construe, not to amend,
the statute. . . . We may not, under the guise of construction,
rewrite the law or give the words an effect different from the
plain and direct import of the terms used’”]; Cornette v.
Department of Transportation (2001) 26 Cal.4th 63 73-74 [“[a]
court may not rewrite a statute, either by inserting or omitting
language, to make it conform to a presumed intent that is not
expressed”].)
4. Requiring Personal Service of the Notice of Hearing Did
Not Violate Searles’s Due Process Rights
Even if not expressly authorized by statute or court rule,
California courts have inherent authority to facilitate an indigent
10 The limited scope of section 413.30 is illustrated by the Law
Revision Commission Comment to section 1250.130, enacted in
1975, which specifies additional requirements when service by
publication has been ordered in eminent domain proceedings.
After noting that sections 415.10 through 415.30 generally
provide the manner of service in an eminent domain proceeding,
the Commission explained, where service by publication is
ordered pursuant to section 415.50, section 1250.130 requires
that the court also order the plaintiff to post a copy of the
summons and complaint on the property and record a lis pendens
to increase the likelihood interested parties will receive actual
notice of the proceeding. Citing section 413.30 the Commission
then suggested, “The court should by order also give appropriate
directions as to the manner of posting, e.g., location and number
of copies.” (Cal. Law Revision Com. com., 19 West’s Ann. Code
Civ. Proc. (2007 ed.) foll. § 1250.130, pp. 490-491.)
17
civil litigant’s equal access to the judicial system by recognizing
exceptions to, or variations in, general procedural requirements.
(Jameson v. Desta (2018) 5 Cal.5th 594, 605.) Thus, in Cohen v.
Board of Supervisors (1971) 20 Cal.App.3d 236, 239, at a time
when fee waivers in this state did not include costs for service of
process, the court of appeal, relying on section 413.30, held
indigent parties in family law cases whose spouses could not be
found for personal service and who could not afford to pay costs of
service by publication could instead serve their spouses by
mailing to their last known addresses and posting at those
locations, a method of service of process described by the United
States Supreme Court in Boddie v. Connecticut (1971) 401 U.S.
371 [91 S.Ct. 780, 28 L.Ed.2d 119].11 The Cohen court explained,
“[T]here really is no other provision made by law for service,
because although publication is theoretically possible, practically
there is no way of efficient publication save by the doubtful
expedient of ordering public officials to make expenditures which
no statute authorizes them to make. This would be a measure
justifiable, if at all, only if it were the sole available means of
carrying into execution the service of summons which plaintiffs,
as indigent litigants, rightfully demand as an incident of due
process.” (Cohen, at p. 239.)
11 The Supreme Court in Boddie v. Connecticut, supra,401 U.S. 371 held the due process clause of the Fourteenth
Amendment requires states to allow an indigent party to divorce
proceedings to litigate without payment of fees and costs.
“[A]bsent a countervailing state interest of overriding
significance, persons forced to settle their claims of right and
duty through the judicial process must be given a meaningful
opportunity to be heard.” (Id. at p. 377.)
18
Searles’s inability to obtain a permanent restraining order
against Archangel, however, is not a product of her indigency.
Searles paid no filing fee because she alleged, pursuant to
section 527.6, subdivision (y), that Archangel had threatened
violence against her or had acted in a manner that made her
reasonably fear for violence. Similarly, there was no cost to
Searles to have the sheriff’s department attempt to personally
serve Archangel because the court granted her request for a fee
waiver. The same difficulty Searles faced in trying to have
Archangel personally served, a statutory prerequisite to issuance
of a permanent restraining order, would confront any petitioner
seeking a restraining order. There is no equal access issue here.
Searles’s contention her inability to proceed against
Archangel conflicts with a crime victim’s rights to justice and due
process, as set forth in article I, section 28, subdivision (b), of the
California Constitution, is misplaced. It may be that Archangel’s
threatening conduct toward Searles constituted a crime. If so, he
is subject to arrest; and, as his victim, Searles may qualify for a
pretrial protective order pursuant to Penal Code section 136.2,
subdivision (a), and, following a conviction, a more extended
restraining order, valid for up to 10 years, under Penal Code
section 646.9, subdivision (k). In seeking a civil harassment
restraining order, however, Searles does not come within the
scope of the victims’ rights provisions of the California
Constitution.
Even though her petition was ultimately dismissed,
Searles’s rights were fully protected in this case. The superior
court rescheduled the hearing on her request for a permanent
restraining order multiple times, from August 14, 2018 through
January 31, 2019, continuing the TRO she obtained against
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Archangel for more than six months and providing her an
extended opportunity to effect personal service. In addition,
when it dismissed the petition, the court did so without prejudice,
advising Searles that if Archangel was continuing to harass her—
something that seems unlikely given his disappearance—she
could file a new petition and begin the process again, including
obtaining another TRO if one was justified. Nothing more was
required.
DISPOSITION
The order dismissing the petition is affirmed. Searles is to
bear her own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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