Miller v. Superior Court In and For Los Angeles County

• Decision Date: 22 September 1961
• Citation: 195 Cal.App.2d 779,16 Cal.Rptr. 36
• Court: California Court of Appeals Court of Appeals
• Parties: Junior Adrian MILLER, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Civ. 25588.

Page 36

16 Cal.Rptr. 36

195 Cal.App.2d 779

Junior Adrian MILLER, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent.

Civ. 25588.

District Court of Appeal, Second District, Division 3, California.

Sept. 22, 1961.

Early, Maslach, Foran & Williams, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.

SPARKS, Justice pro tem.

Petitioner seeks a writ of mandamus compelling the respondent court to vacate an order heretofore made in denial of a motion to quash service of summons and to require said respondent to grant said motion. The petition is verified by Harry Boyd, who deposes and says: 'That he is one of the attorneys appearing on behalf of Petitioner Adrian Miller and as such he verifies the foregoing Petition For Alternative Writ of Mandamus on behalf of said Petitioner for the reason that he is more familiar with the facts stated therein than is said petitioner and that the whereabouts of petitioner is unknown; * * *' (Emphasis added.)

The facts giving rise to this special proceeding are as follows: a complaint was filed in Los Angeles Superior Court on August 3, 1960, by J. S. Alvarez, Maria Alvarez and F. Yanez, by Maria Alvarez, his guardian ad litem, as plaintiffs, and naming Junior Adrian Miller (petitioner herein) as defendant. The action was for damages for injuries to persons and property alleged to have been sustained by the negligent operation of a motor vehicle driven by Miller. Summons was issued on August 3, 1960, and an order for publication of summons was made on February 21, 1961. Publication of the summons was duly had in the Los Angeles Daily Journal, commencing on February 28, 1961. Petitioner was never served personally with a copy of said summons and complaint, either inside or outside of the State of California, his whereabouts being unknown.

On or about May 2, 1961, a document entitled 'Notice to Plea' was sent to the law firm of Early, Maslach, Foran and Williams, 4680 Wilshire Boulevard, Los Angeles 5, California, and filed with respondent court. This 'Notice to Plea' was apparently served upon said counsel under the belief that they were representing said defendant's insurance carrier. It advised that on or about May 8, 1961, plaintiffs would request an entry of default against said defendant. Attached to this document was a declaration of plaintiffs' attorney, Richard A. Ibanez, stating that he had mailed a copy of the summons and complaint to Farmers Insurance Group, insurance carrier for defendant, on March 7, 1961. On May 5, 1961, the said law firm filed notice of motion to quash the attempted service of summons on defendant Junior Adrian Miller, on the ground that he had left the State of California and had never been personally served. This motion was argued, and on May 26, 1961, respondent court made its order denying the motion to quash.

In respondent's return filed herein, it is urged that no credible evidence, either by way of affidavit or otherwise, was offered at said hearing on said motion to quash, that Junior Adrian Miller had departed from the State of California, and that the moving party had failed to sustain his burden of proof on this ground.

The statutory provisions in California for constructive service of process are contained in sections 412 and 413, Code of Civil Procedure. These sections provide for service of summons by publication and mailing upon a defendant who resides out of the state, or has departed from the state, and by publication alone where the defendant cannot, after due diligence, be found within the state, or where he conceals himself to avoid service of summons. Satisfactory proof by affidavit that the person upon whom service is to be made comes within one or more of these categories is a jurisdictional requirement to the issuance of an order for publication. Forbes v. Hyde, 31 Cal. 342; Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 71 P. 498; In re Behymer, 130 Cal.App. 200, 19 P.2d 829; Morgan v. Clapp, 207 Cal. 221, 277 P. 490. The affidavit, being a foundational document, measures the validity and effectiveness of the order (Stern v. Judson, 163 Cal. 726, 127 P. 38); the allegations thereof should conform to rules of evidence and state probative facts of affiant's own knowledge rather than hearsay information or merely legal conclusions. Kahn v. Matthai, 115 Cal. 689, 47 P. 698; Columbia Screw Co. v. Warner Lock Co., supra; In re Behymer, supra; Batte v. Bandy, 165 Cal.App.2d 527, 332 P.2d 439.

The declaration-affidavit filed by plaintiffs' counsel as a basis for publication of summons in the principal action contains the following allegations: '4. Said defendant, Adrian Junior Miller, cannot, after due diligence, be found within the State of California, or, said defendant conceals himself to avoid the service of Summons herein.' In support of said statutory grounds for publication, the following appears in said affidavit: that the defendant was a resident of the State of California on June 3, 1960, the date of the accident sued upon; defendant was the registered owner of the automobile involved in the accident, bearing a California license for 1960; defendant had an operator's license issued by the State of California listing his address as 1117 Barton, Whittier, California; a criminal complaint was issued against defendant charging him with drunk driving, a misdemeanor, in the case entitled The People of the State of California versus Junior Adrian Miller, Municipal Court of Los Angeles Judicial District, Case No. V86393; the trial of said criminal case was set for July 27, 1960, in division 20 of said court; the defendant in said criminal case, and the defendant in the action herein, failed to appear at said trial and a warrant for his arrest was issued; said warrant has not been served on defendant for the reason that said defendant cannot be found and said warrant remains outstanding; inquiry had been made at defendant's last known place of employment, and information was received that he had quit his employment; a licensed investigator, Mr. LeRoy Webb, had been employed to find defendant, but had not been able to do so; inquiries had been made of defendant's residence and of his roommate and that inquiry had been made of defendant's insurance carrier. The following statement taken from the report of the investigator was embodied in said affidavit: 'It is with regret I must tell you that he has skipped the state. He left about a month and a half ago to his home state of La. According to the party he roomed with at the Whittier address, Miller got wind of the fact he was being sought on the 502 warrant, and departed in much haste. * * * No one knows the address or name of the town in La. to which Miller fled.' Attached to said report are three photographs of said defendant taken by the Los Angeles Police Department, bearing number 049530, dated 2-20-61. The affidavit then recites: 'Based upon the foregoing facts and circumstances enumerated in the preceding sub-paragraphs, declarant alleges that said defendant Junior Adrian Miller has either left the state, or is concealing himself to defraud the plaintiffs and no other form of service is available to the plaintiffs other than service by publication.'

The court thereupon granted the order for publication of summons on the three grounds of (1) departure from the state (2) inability to find defendant in California after due and diligent search, and (3) concealment to avoid service of summons. We are of the opinion that the affidavit was sufficient to support the order on the last two grounds, but not on the first. As noted above, the declaration upon which the order for publication was based was made by plaintiffs' attorney. The quoted portion of the investigator's report included in said affidavit was consequently not only hearsay as to said deponent but was itself based upon unsworn and hearsay information. It was, therefore, of no probative value and insufficient to support a finding that the defendant had departed from the state. Kahn v. Matthai, supra; In re Behymer, supra; Batte v. Bandy, supra. We conclude that the finding for the order of publication that said defendant had departed from the state was made inadvertently, for the reason that said order also contains the following specific finding: 'And it further in like manner satisfactorily appearing to me that the residence of said Defendant Junior Adrian Miller is 1117 Barton Road, Whittier, California * * *.' The other two findings, that said defendant could not with due diligence be found in the State of California, and that he is concealing himself to avoid service of summons, however, were adequately buttressed with probative facts.

In Rue v. Quinn, 137 Cal. 651, at pages 655-656, 66 P. 216, at page 217, 70 P. 732, the court stated: 'In making the order for the service by publication, the judge acts judicially upon the evidence which the Code requires to be presented to him for that purpose, and can act upon no other evidence than such as is prescribed by the Code * * * [His] decision * * * is to be regarded with the same effect as is his decision upon any other matter of fact submitted to his judicial determination. * * *' To similar effect is the holding in Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, at page 739, 329 P.2d 489, at page 491, from which we quote: 'Here the order expressly recites that 'upon reading and filing the affidavits [of five named persons] and it satisfactorily appearing therefrom to me that the Defendant George B. Bush * * * conceals himself to avoid service of the Summons * * *.' It thus appears that at the time of making the order for publication, the court was satisfied, and therefore found, that defendant Bush was concealing himself to avoid service.' In the instant case the...