Cradduck v. Financial Indemnity Co.

This is an appeal from a judgment following a jury verdict for plaintiff in the sum of $11,153.60 against defendant Financial Indemnity Company (“Financial”). The appeal is on a clerk’s transcript augmented by the judgment roll in the original action. Financial had insured one Cervantes under a public liability policy. Plaintiff had obtained a default judgment against Cervantes for personal injuries suffered in an automobile accident. The judgment was obtained after publication of summons pursuant to an order therefor.

In the ease at bench defendant’s attack, which is against the judgment in the original action, is collateral. Against such an attack we hold the judgment must be affirmed. Our reasons will be developed below.

Publication of summons in thé original action was based upon the affidavit of Burt Lancaster, one of plaintiff’s attorneys. It alleged, inter alia, that a complaint had been filed and a summons issued January 31, 1961, and that the complaint and summons had been placed in the hands of William Lowe, a private investigator, for service upon Frank Cervantes, the defendant. It alleged that Lowe had made diligent efforts to serve Cervantes and enumerated these efforts which included a visit to his place of employment, where it was ascertained that Cervantes had left his employment. (Lowe was told there that Cervantes had “departed for the State of Oregon.”) Cervantes’ mother had been visited and from her it had been learned that she did not know his whereabouts. The investigator had talked with Cervantes’ wife. From her he ascertained that Cervantes had absented himself from Sacramento County for the reason that he was being sought “by Sacramento County officials for the purpose of enforcing payment for support of said Defendant’s minor child.” Lowe had then visited the sheriff’s office in Sacramento and had confirmed this information. Deputies of that office were searching for Cervantes and had a warrant for his arrest but had been unable to ascertain his whereabouts. From the California Department of Motor Vehicles the investigator learned that said defendant had “no residence address listed, only a post office address. ’ ’ Information had next been sought from the sheriff of Contra Costa County, where it was “learned that Defendant Frank Cervantes had been released from custody” and his whereabouts was also unknown to him. From these facts Lancaster, the affiant, drew the conclusions “that your affiant believes and thereon alleges that Defendant Frank Cervantes is secreting

In Thompson v. Thompson, 226 U.S. 551 , 556 [ 33 S.Ct. 129 , 57 L.Ed. 347 ], a Virginia decree was attacked upon the ground that the affidavit used as the basis for an order of publication was made on information and belief and not on personal knowledge. The court said at page 566: “ [I]t seems well settled that where the affidavit used as the basis for an order of publication is defective, not in omitting to state a material fact, but in the mode of stating it or in the degree of proof, the resulting judgment, even though erroneous and therefore voidable by direct attack, cannot be said to be coram non judice and therefore void on its face.” In Pennoyer v. Neff, 95 U.S. 714 , 721 [ 24 L.Ed. 565 ], it was said that defects in an affidavit can only be taken advantage of in a direct proceeding.

Several California cases hold that in a collateral proceeding the hearsay nature of facts stated in an affidavit considered by a judge in determining that the affiant used due diligence to effect service does not render the judgment void. (Rue v. Quinn, 137 Cal. 651 , 656-657 [ 66 P. 216 , 70 P. 732 ]; Ligare v. California Southern R. R. Co., supra, 76 Cal. 610 ; see also Davis-Heller-Pearce Co. v. Ramont, 66 Cal.App. 778 [ 226 P.

Re The Contention That the Affidavit Was Otherwise Insufficient.

The affidavit filed in this case is not a model of draftsmanship. It does, however, state facts showing that Cervantes could not after due diligence of search be found within the State of California. Every fact alleged justifies by clear inference the conclusion that Cervantes was a resident of California. He had a car registered in California and was driving a ear with a California license plate at the time of the accident. His wife had sought the aid of the Sacramento County Sheriff to enforce an order of child support and that officer had a warrant out for his arrest. It is clearly inferable that his employment was in California and that he lived here. As against collateral attack it is enough that required facts appear by inference. (Ligare v. California Southern R. R. Co., supra, 76 Cal. 610 , 612-613; Chapman v. Moore, 151 Cal. 509 , 513 [ 91 P. 324 ].) The evidence recited above regarding the unsuccessful efforts of the wife and Sacramento County law enforcement officers to cause the arrest of Cervantes also justifies the conclusion that he was concealing himself (in the language of § 412) “to avoid the service of summons”-—albeit the process he sought to evade was in another action. (See Miller v. Superior Court, supra, 195 Cal.App.2d 779 , 783-784, a ease which we will discuss at length below.)

It has been noted above that where the residence of “a non-resident or absent defendant is known” a copy of the complaint and summons must be mailed to him in addition to the service to be made by publication. (Italics added.) (Code Civ. Proc., § 413.) But here, as the affidavit shows, Cervantes was neither a “non-resident” nor “absent” defendant in the sense those terms were intended by the Legislature in said

A comment in 44 California Law Review 737, Personal Jurisdiction Over Absent Natural Persons, at page 742, poses the dilemma but does not answer it, although it does say that if a personal judgment is impossible under the circumstances stated “the plaintiff would be unduly burdened and the defendant permitted the advantage of a windfall through his own undesirable conduct.”

This is not altogether a ease of first impression in California. The facts in Miller v. Superior Court, supra, 195 Cal.App.2d 779 , were quite similar. There in a personal injury action a defendant sought could not be reached for service of summons, the reason being he had successfully hidden himself to avoid arrest under a criminal charge for drunk driving. An order for service by publication was obtained and that was the only service of process. Although, as here, the foundational affidavit for the order of publication stated, on information and belief, that defendant was out of the state, the factual basis for substituted service was that he was concealing himself. In holding that a valid personal judgment had been obtained the court (per Sparks, Justice pro tern.) stated (on p. 786) : “A person who deliberately conceals himself to evade service of process is scarcely in a position to complain overmuch of unfairness in substitutive methods of notification enacted by the Legislature to cope with such situations. When it satisfactorily appears that a defendant by his own design successfully has secreted himself from the process server and thus thwarted personal service, it would indeed be anomalous to heed an assertion that he had been denied notice and an opportunity to be heard. (Ware v. Robinson, . . . , 9 Cal. 107 .)”

The opinion concludes on page 788 : “ [W]e do not feel constrained, however, to hold that personal service of process upon the petitioner is a mandatory requirement for the entry of a personal judgment. There was no finding of the court supported by substantial evidence that petitioner had either

It is true that in the Miller case the order for publication of summons contained a finding that the defendant was concealing himself to avoid service of summons. That finding is missing from the order made in the original action here. A finding in the order is, however, unnecessary. It was stated in William Wilson Co. v. Trainor, 27 Cal.App. 43 , at page 44 [ 148 P. 954 ]: “Jurisdiction to make the order rested upon the averments of the affidavits, and not upon the recitals of facts found in the order. ’ ’ Moreover, in the instant case the proceedings did not end with the order for publication of summons. Thereafter publication was made, a default was taken and after witnesses were sworn—whose testimony is not before us on this clerk’s transcript appeal—a personal judgment was entered, finding that Cervantes had been regularly served with process. Concealment to avoid service of any and all process was shown by affidavit. Assuming, without holding, that concealment to evade service of process, as well as, and in addition to, inability to find after due diligence of search, is necessary against a collateral attach to justify the personal judgment, the rule is that “Implicit in every order [or judgment] ... is a finding of those facts supported by the evidence which are necessary to sustain it.” (People v. Tannehill, 193 Cal.App.2d 701 , 706 [ 14 Cal.Rptr. 615 ]; see also Griffith Co. v. San Diego College for Women, 45 Cal.2d 501 , 507 [ 289 P.2d 476 , 47 A.L.R.2d 1349 ].) It has also been held in Minardi v. Collopy, 49 Cal.2d 348 , at page 353 [ 316 P.2d 952 ]: “. . . On such [collateral] attack every presumption is in favor of the validity of the judgment or order and any condition of facts consistent with its validity and not affirmatively contradicted by the judgment roll will be presumed to have existed. [Citation.] ”

We have assumed arguendo but we do not hold that proof by affidavit that Cervantes’ concealment to avoid some

,A factor which cannot be disregarded at this point is the role of the insurance company, Financial, in the proceedings. The record shows the following: Financial's representative was informed by plaintiff on April 4, 1960, of the accident (which had occurred on February 24, 1960, one-quarter mile east of Perkins). It was also informed of the claim against Cervantes on that date. Financial, however, had known of the accident at least as early as March 3, 1960, when Cervantes had given its adjuster a statement. Financial had plaintiff examined by its doctor. Negotiations were had for a settlement and it appears that an offer of compromise made by Financial was rejected. On March 20, 1962, (over two years after the accident) Financial advised that it would not accept service of summons until Cervantes had been served and would not appear in the action until then. (Financial had been provided with a copy of the complaint and summons.) Correspondence from Financial to plaintiff’s attorneys, dated May 21, 1962, states: “Mr. Cervantes was, on February 21, 1960, and so far as we know still is, a resident of California.” However, subsequent correspondence stated the company did not know his present whereabouts, and the record also shows that “On February 7, 1961, a letter was addressed by Adjuster to insured advising him of pending service of summons and complaint, assured address being P.O. Box 113, Perkins, California.” This letter was returned with the annotation “moved, no address.” The address given is, as the record shows elsewhere, that of the Weissman Ranch and was at the time where he lived and was then employed.

The facts recited subsequent to the default judgment, of

The judgment is affirmed.

Friedman, J., and Regan, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied August 24, 1966.