Hayes v. Risk

Appeal by Hayes from a judgment on the pleadings and from an order dissolving a preliminary injunction, and appeal by Risk from order reinstating preliminary injunction pending appeal.

The history of the litigation which spawned the filing of the

On June 8, 1962, James J. Oppen, one of the attorneys for Risk, filed an affidavit in support of an order that the service of summons on the first amended complaint be made on Hayes by the publication thereof. This affidavit had attached to it and incorporated in it a return of service by a deputy marshal of the Municipal-Courts of Los Angeles County, and the affidavits of Leo J. Beck and Clifford House, private detectives who had been employed by Oppen. Hayes had been named in the original complaint and the first amended complaint as ‘ ‘ Charles E. Hayes. ’ ’ The affidavit of Oppen sought an order for service of the summons on the first amended complaint by publication thereof upon the grounds that after the exercise of due diligence Hayes could not be found within the state, and that Hayes was concealing himself to avoid the service of summons. Oppen deposed that after the marshal was unable to obtain service, he (Oppen) checked with the Department of Motor Vehicles with respect to an address for Hayes and was given an address which corresponded with the one at which Hayes had been served with the original complaint and summons. The return of service on the original

Oppen’s affidavit incorporated a complaint, in the form of a letter, made to the office of the Insurance Commissioner under date of August 28, 1961, and a letter of the same date addressed to American. The contents of these documents reveal generally that Hayes had been served with the original complaint but could not be found for service of the amended complaint; that Hayes had been booked upon the charge of violation of section 23101, Vehicle Code (felony drunk driving) arising from the accident in which Risk sustained her injuries; that a representative of American had interviewed Hayes while he was incarcerated on that charge; that a copy of the amended complaint and summons thereon had been sent to American by Oppen on August 1, 1961, but American had refused to defend on the ground that Hayes had refused to cooperate with his insurer; that inasmuch as Hayes was booked on a felony drunk driving charge after rear-ending Risk, there was no question of liability in the case, and that Risk’s injuries were severe; that Oppen offered a settlement of $9,500 on the assumption that the policy limits were $10,000; that the offer was made for the express purpose of reducing the claim to judgment and if not accepted, to thereafter pursue any excess judgment which might be obtained in the action against Hayes, against American; that Oppen would not seek a default judgment until American had a reasonable opportunity to defend.

The affidavit of Leo J. Beck discloses that he was a duly licensed and bonded private investigator and had been employed on January 10, 1962, by the law firm of Thompson,

“The last address which I was able to obtain from the police records was 4587 Mulberry in Riverside, California, which was the address to which subject was released after his 30-day sentence on August 21,1961.

“He was described as a ‘common drunk and transient.’ ”

The affidavit of Clifford House discloses that he is a licensed private investigator and was employed by Oppen to search for and locate Hayes; that on April 15, 1962, in the course of this employment, he went to the office of the Sheriff of Riverside County and checked the records there but found no record of Hayes; he then checked the records of the Police Department of the City of Riverside and found a record of arrest on Hayes made on April 28, 1961, for being drunk; this record disclosed an address for Hayes at 3471 Fifth Street, Riverside; a check at this address produced the information that the landlord had evicted Hayes from the premises at

The superior court file also discloses that a summons on the first amended complaint was, on January 29, 1962, placed in the hands of the Sheriff of Riverside County for service upon Hayes, and that on March 14, 1962, the sheriff made his return that Hayes was unknown at the address “4587 Mulberry, Riverside, California. ’ ’

Based upon this showing, the trial court, on June 8, 1962, ordered service of the summons on the amended complaint to be made on Hayes by publication thereof, and that a copy be placed in the United States mail addressed to Hayes at 7361 Foothill Boulevard, Tujunga, California. The order for the publication of the summons was predicated upon the grounds as set forth in Oppen’s affidavit that Hayes “could not after due diligence be found within the State of California’’ and that he “Conceals himself to avoid service of Summons.’’ The showing made by the affidavit was sufficient to sustain the order for publication of summons upon both grounds upon which it was sought. Publication of summons followed in accordance with the order for publication.

On July 31, 1962, Risk filed a request for entry of default of Hayes, and such default was entered on August 15, 1962. On June 7. 1963, the cause was heard as a default as against Hayes, the other named defendants, as well as the Does named as defendants, having been dismissed. Judgment followed in

On March 20,1964, Risk filed an action in declaratory relief against American and others, number C 835478. The substance of her complaint in this action was that she was seriously injured on June 7, 1960, in an automobile accident arising out of the negligence of Hayes; she had sued Hayes and had received a judgment by default against him in the sum of $51,349.69 ; that Hayes was insured by American, and that on July 13, 1960, Risk had given American notice of her claim against Hayes; that on August 1, 1961, Risk had furnished American a copy of the complaint and summons in her action against Hayes, and had given American every opportunity to defend said action; that American had failed and refused to defend such action; that Risk had, on July 6, 1962, sent to American evidence of service of the amended complaint on Hayes by publication of the summons in said action; that on July 11, 1963, Risk sent a copy of the judgment against Hayes to American, and the latter refused to pay such judgment; that Risk offered to settle her claim against Hayes for an amount within the policy limits of the policy of American covering Hayes and that American had wrongfully and fraudulently refused such offer; Risk prayed for judgment declaring that American is liable to her for the full amount of her judgment against Hayes.

On May 20, 1964, American filed its answer in the declaratory relief action. In its first affirmative defense, American alleged that the judgment obtained by Risk against Hayes was void in that the court never acquired jurisdiction of the person over Hayes by personal service or by publication of the summons or otherwise, and that such facts appear on the face of the record in the case of Risk v. Hayes (NWC 568). As a second affirmative defense, American alleged that whatever coverage Hayes may have had under the policy of insurance issued by American was voided by the failure of Hayes to cooperate with his insurer, as a result of which American suffered substantial prejudice. The third affirmative defense alleged, that the complaint failed to state a cause of action. Further prosecution of this declaratory relief action was enjoined by order of the trial court made August 2, 1965, in the present action until its final outcome on appeal.

Paragraph IX of the complaint then alleges “that plaintiff did not reside at 7361 Foothill Boulevard, Tujunga, California, on June 8, 1962, or at any time between June 8, 1962, and August 15, 1962, but on the contrary plaintiff was residing in the States of Utah and Nevada during said periods and was not a resident of the State of California, and did not at any time conceal himself in the State of California to avoid service of summons.’’ The complaint further alleges in substance that Hayes first had knowledge of the publication of the summons on the first amended complaint, of the default, and of the default judgment on February 19, 1965; that Risk has filed an action against American, number C 835478, wherein she claims that American as the insurer of Hayes is liable to Risk for the full payment of the default judgment in action number NWC 568, and that said action is now pending ; Hayes has a good and sufficient defense to said action, in that the total amount of damages to which Risk would have been entitled, if the case had been properly defended, would not have exceeded $5,000 or some amount well within the policy limit of $10,000, which coverage Risk claims Hayes had with American; that the default judgment was the result of

The present action is one in equity, and constitutes a direct attack upon the default judgment on the grounds that the trial court did not acquire jurisdiction to render a personal judgment against Hayes for the reason that service of summons was never made upon him. (Bennett v. Hibernia Bank, 47 Cal.2d 540 , 558 [ 305 P.2d 20 ] ; Sternbeck v. Buck, 148 Cal.App.2d 829 , 832 [ 307 P.2d 970 ]; County of Alameda v. Clifford, 187 Cal.App.2d 714 , 724 [ 10 Cal.Rptr, 144 ] ; People ex rel. Public Util. Com. v. Ryerson, 241 Cal.App.2d 115 , 123 [ 50 Cal.Rptr. 246 ].)

Where a complaint is amended, a copy of the amended complaint must be served upon the defendants affected thereby. (Code Civ. Proc., § 432; Elder v. Spinks, 53 Cal. 293 , 294; Taliaferro v. Taliaferro, 217 Cal.App.2d 211 , 216, 219 [ 31 Cal.Rptr. 690 ].) The new pleading supersedes the original and furnishes the sole basis for the cause of action. (Legg v. Mutual Benefit H. & A. of Omaha, 136 Cal.App.2d 887 , 893 [ 289 P.2d 550 , 290 P.2d 87 ]; Morehead v. Turner, 41 Cal.App.2d 414 , 418 [ 106 P.2d 969 ].) The original complaint is dropped out of the case and ceases to have any effect as a pleading, or as a basis for a judgment. (Tidwell v. Henricks, 124 Cal.App.2d 64 , 66 [ 268 P.2d 84 ].) The record discloses that Hayes was personally served with a copy of the original complaint and the summons issued thereon, but no personal service of the first amended complaint and summons issued thereon was had. Under these circumstances the personal service of the original complaint on Hayes furnishes no basis for the rendition of an in personam judgment against him predicated upon the cause of action pleaded in the first amended complaint. The in personam default judgment, therefore, must rest upon the sufficiency and the validity of the service of the summons issued on the first amended complaint.

A motion for judgment on the pleadings operates as a

‘1 ‘ One main objection to service by publication on a person residing outside of the state is that due process requires fair notice. This was a consideration in Milliken v. Meyer, supra, 11 U.S. 45 , upholding a personal judgment against a domiciliary based on the personal service of process while absent from the state. It was there said at page 464: “One . . . incident of domicile is amenability to suit within the state

even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.” The same principle on analogous reasoning applies where a domiciliary at the time of the commencement of the action thereafter changes his state of residence and is personally served with process in the latter state. As a citizen of the state wherein the action was commenced, he had certain responsibilities arising out of his relationship to that state by reason of domicile, one of which was amenability to suit therein. Such relationship and responsibility based on citizenship within the state are not terminated by his subsequent removal to another state, and he may be served with process pursuant to a method reasonably designed to give him notice of the proceedings brought against him in the courts of the state of his original domicile prior to his departure therefrom. We therefore conclude that section 417 satisfies the requirements of procedural due process, for no more certain provision for defendant’s receipt of actual notice of the institution of litigation against him could be made than through the specified personal service of process. (Milliken v. Meyer, supra, 311 U.S. 457 , 463; see 40 Cal.L.Rev. 156 .)’ (41 Cal.2d at 312-313.)” (Owens v. Superior Court, 52 Cal.2d 822 , 827-829 [ 345 P.2d 921 , 78 A.L.R.2d 388 ].)

Considering the provisions of section 417 of the Code of Civil Procedure as a legislative restriction upon the power of the court if a personal judgment is to be entered, we must assume that the Legislature, in the enactment of these sections, did not discriminate, nor did it intend to discriminate, in favor of one who successfully conceals himself in a foreign jurisdiction to -avoid the service of summons, against one who successfully conceals himself within the state for the same purpose. It is obvious that it would be just as impossible to effect personal service of the summons upon the one as it would be upon the other, and we do not believe that the Legislature intended to require the performance of an impossible act, nor did it intend that the section should act as a shield to protect one who leaves the jurisdiction and intentionally conceals himself in a fore.ign jurisdiction to avoid the service of summons. (See 45 Cal.Jur.2d 625, § 116.) We believe that the requirement of personal service of the summons as contained in section 417 of the Code of Civil Procedure, the other conditions being fulfilled, relates to service upon one who is not concealing himself in a foreign jurisdiction and

In the case at bench, copies of the original affidavits filed in support of the order for publication of summons on the first amended complaint in Risk v. Hayes, NWC 568, except for the return of service made by the Sheriff of Riverside County, are attached to and made a part of the plaintiff’s complaint herein. These affidavits show that Hayes was a resident of California at the time of the accident out of which the original action arose; that he was a resident of this state on February 9, 1961, when the action was commenced, and was a resident on February 21, 1961, when he was personally served with the original complaint and the summons thereon. The affidavits disclose that Hayes concealed himself to avoid the service of summons on the first amended complaint. As heretofore pointed out, the only allegation in plaintiff’s complaint bearing upon concealment is contained in paragraph IX thereof, and simply states the position of Hayes taken at the trial level, and taken here, that Hayes could not have concealed himself in California because he was, in fact, outside the jurisdiction when service was had upon him by publication of the summons. This is far short of the necessary allegation that Hayes at no time or place concealed himself to avoid the service of the summons. In the absence of such an allegation, Hayes failed to state a cause of action in equity for relief from the default judgment, and judgment on the pleadings was proper.

It has been said that “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.” (Miller v. Superior Court, 195 Cal.App.2d 779 , 786 [ 16 Cal.Rptr. 36 ].)

As to the appeal of Risk, it is well established that

On petition for rehearing, Hayes asserts that the precise deficiency in his complaint, that he failed to allege that he did not conceal himself outside the jurisdiction of the State of California, was neither raised nor argued at the trial level, and was not the basis of the trial court’s determination to grant the motion for judgment on the pleadings. An examination of the superior court file discloses that this contention is not without merit. Hayes asks permission to amend his complaint to cure this deficiency. It is pertinent to note that in MacIsaac v. Pozzo, 26 Cal.2d 809 , at page 816 [ 161 P.2d 449 ], the Supreme Court referred to section 472c of the Code of Civil Procedure which provides that the question whether the trial court abused its discretion in sustaining a demurrer without leave to amend “is open on appeal even though no request to amend such pleading was made ’ ’ and then stated: “Since the reason for the rule is the same on a motion for judgment on the pleadings, the same result should obtain.” We believe the request to amend made by the plaintiff in his petition for rehearing, under the circumstances here shown, is meritorious and should be granted.

The order which is the subject of the cross-appeal is affirmed. The judgment is reversed with directions to the trial court to grant the plaintiff leave to amend his complaint. Each party shall bear his or her own costs on this appeal.

Ford, P. J., and Moss, J., concurred.

A petition for a rehearing was denied on November 30, 1967, and the opinion and judgment were modified to read as printed above.