Anastos v. Kuo Chen Lee

California Court of Appeal May 26, 2004 No. D041904Published

Before: McINTYRE

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Holding. Once a court authorizes service of a summons and complaint by publication, a separate court order is not required to simultaneously serve a statement of damages by publication. Furthermore, a trial court does not abuse its discretion in denying a motion to set aside a default judgment when the moving party fails to provide a competent affidavit demonstrating that their lack of actual notice was not caused by inexcusable neglect or avoidance of service.

Issues

Whether a separate court order is required to serve a statement of damages by publication when service of the summons and complaint by publication has already been authorized.
Whether the trial court abused its discretion in denying a motion to set aside a default judgment under section 473.5 for lack of actual notice.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“once a party obtains a court order allowing service of the summons and complaint by publication, a separate order is not necessary to simultaneously serve the statement of damages by publication.”

“Anastos was not required to obtain a second court order and therefore the default judgment is not void for defective service of process.”

“Absent a proper affidavit or declaration that the defendants’ lack of actual notice was not caused by inexcusable neglect or avoidance of service, the trial court properly denied the defendants’ motion.”

Opinion

McINTYRE, J.

In this case we conclude that once a party obtains a court order allowing service of the summons and complaint by publication, a separate order is not necessary to simultaneously serve the statement of damages by publication.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2000, a vehicle driven by Kuo Chen Lee (also known as “Peter”) rear-ended a vehicle driven by Cecilia Anastos, in which her minor child,' Theo, was a passenger. Kuo Chen Lee provided Anastos with an address, which was either incorrect or transposed incorrectly, and insurance information. In April 2001, after unsuccessful negotiations with defendants’ insurance

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company, Anastos filed a complaint in superior court against Kuo Chen Lee and Benson Lee (together defendants) for personal injuries and property damage.

In June 2001, Anastos requested and the court granted an extension of time to serve the defendants because she had been unable to locate them. In August 2001, Anastos filed an ex parte application for an order permitting service of process by publication. (Code Civ. Proc., § 415.50; all undesignated statutory references are to this code.) After the court issued the order, the summons and complaint and statement of damages appeared in the .Uptown Examiner, a newspaper of general circulation published in San Diego, California in four consecutive weeks in September 2001.

The defendants did not answer the summons and complaint, and the court entered their default in November 2001. In March 2002, the court held a default prove-up hearing and entered a judgment for Anastos in the amount of $42,196.76.

In November 2002, the defendants filed a motion to set aside the default for lack of actual notice without inexcusable neglect or avoidance of service pursuant to section 473.5. The defendants supported their motion with declarations from their counsel and their investigator. After the court denied the motion, the defendants filed a motion for reconsideration, which the trial court also denied. This appeal followed.

Anastos v. Kuo Chen Lee

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FACTUAL AND PROCEDURAL BACKGROUND

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DISPOSITION

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