Ben-Yehoshua v. Superior Court

FORD, J. The petitioner seeks a writ of mandate to compel the superior court to vacate an order denying the peti[720]tioner’s motion to quash service of summons and thereupon to make an order granting that motion.

On May 8, 1961, the real party in interest, a minor, filed an action against the petitioner to recover damages for personal injuries alleged to have been sustained by her in an automobile accident which occurred in the County of Los Angeles on or about May 8, 1960. The real party in interest, as plaintiff in the action, made an application to the superior court on April 3, 1962, for an order for publication of summons. (See Code Civ. Proe., § 412.) In a declaration filed in support of the application, her guardian ad litem stated in part as follows: “To the best of my knowledge, defendant was an Israeli. Said defendant cannot, after due diligence, be found within the State of California. The last known place of address of said defendant is 99 South Pearl Street, Albany, New York. ... At the time of the accident, defendant was a student at U.C.L.A. The Registrar of U.C.L.A. was contacted and the Registrar stated that the defendant was living in Davis, California. ... I then wrote the deputy sheriff in Davis, California, who informed me that defendant was not living in Davis any longer. A subsequent letter from the Registrar at the University of California, Davis Branch, stated that the defendant was at the 99 South Pearl Street address, Albany, New York. . . . The Sheriff of Albany, however, informed that defendant had left for Israel. ...”

On April 3, 1962, the superior court made an order for publication of alias summons, which order was based on the determination that the petitioner “cannot after due diligence be found within the State of California.” In the order it was further stated that “the last known place of residence of said defendant is 99 S. Pearl Street, Albany, New York.”1 Publication pursuant to the order was completed in the month of April 1962. (See Code Civ. Proe., § 413.) The petition states that one of the documents attached to the application for the order for publication of summons was: “A Return Receipt [721]of the United States Post Office addressed to Petitioner at 99 South Pearl Street, Albany, New York, with the delivery date of March 22, 1962.” It is not alleged that the petitioner personally signed the receipt. The petitioner was never personally served with a copy of the summons and complaint. On August 31, 1962, the petitioner filed a motion in the superior court to quash service of summons on the ground that the court was without jurisdiction to subject him to a judgment in personam.. The motion was denied on December 4,1962.