Searles v. Archangel

• Decision Date: 22 January 2021
• Docket Number: B296011
• Citation: 60 Cal.App.5th 43,274 Cal.Rptr.3d 170
• Court: California Court of Appeals Court of Appeals
• Parties: Queen SEARLES, Plaintiff and Appellant, v. Michael ARCHANGEL, Defendant and Respondent.

60 Cal.App.5th 43

274 Cal.Rptr.3d 170

Queen SEARLES, Plaintiff and Appellant,

v.Michael ARCHANGEL, Defendant and Respondent.

B296011

Court of Appeal, Second District, Division 7, California.

Filed January 22, 2021

Queen Searles, in pro. per., for Plaintiff and Appellant.

No appearance by Defendant and Respondent.

PERLUSS, P. J.

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 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, 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 provide a defendant with notice of the action for divorce, or any other lawsuit for that matter." ( Id. at p. 316, 5 N.Y.S.3d 709.) 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, 5 N.Y.S.3d 709.)

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

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, 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, 5 N.Y.S.3d 709, 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, 161 A.3d 154 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 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 WL 670817, 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...