Harris v. Cavasso

[725]

Opinión

JANES, J.

Defendant Edouard Cavasso appeals from an order denying his motion to set aside his default and a default judgment which was thereafter entered against him.

Plaintiffs filed an action against defendant Cavasso and two of his allegedly alter ego corporations for breach of a construction contract and for fraud; both compensatory and punitive damages were sought. Thereafter, based upon an affidavit by plaintiffs’ attorney, an order was made for publication of summons upon defendant Cavasso. In due time defendant’s default was entered and, after an uncontested hearing, judgment was entered in plaintiffs’ favor and against defendant in the amount of $21,500 as

compensatory

damages and $10,000 in punitive damages, together with costs. Eight months after entry of judgment, defendant moved to vacate the default and to set aside the judgment. The motion was denied.

The sole issue on this appeal is the sufficiency of the affidavit for the order for publication of the summons.

Defendant contends here, as he did in the trial court, that “[tjhe meager statements in the [affidavit of plaintiffs’ counsel] were totally insufficient to confer upon the trial court jurisdiction to determine whether there existed the necessary due diligence in attempting to

determine

defendant’s whereabouts.” Secondly, he contends that verification by plaintiffs’ counsel of the complaint does not satisfy the statutory requirement that it be shown by affidavit that a cause of action exists against the party to be served by publication.

Code of Civil Procedure section 415.50 provides the statutory basis for defendant’s attack. The relevant subdivision provides as follows: “(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: (1) A cause of action exists against the party upon whom service is. to be made or he is a necessary or proper party to the action;...”