Judgment of Dismissal Affirmed on Appeal – Overturns $1 Million Default
In Aguilera v. Cruz and Farley, DAR’s team of John Brydon, Edward Tugade, Lisa Pan and Jim Weixel secured a dismissal after Plaintiff entered a default against our clients for $1.034 million and successfully defended the dismissal on appeal.
Defendant lost control of her vehicle, causing Plaintiff’s car to roll over. Rather than accept a pre-suit settlement with the insurer, Plaintiff filed suit and claimed difficulty locating and serving defendants. After refusing the insurer’s offer to accept service if Plaintiff limited the recovery to policy limits, Plaintiff served the insured by publication, and took a default judgment for $1.034 million.
We challenged the service by publication order by arguing that the declaration of inability to serve was unsigned and that publication was made in a county where defendants did not reside. The court agreed, set aside the default, and ordered Plaintiff to re-serve defendants. Plaintiff delayed and then attempted substituted service on one insured and obtained another order for service by publication on the other insured.
We moved to quash the substituted service and again challenged the order for service by publication as procedurally defective. We further moved to dismiss the action based upon failure to serve defendants within three year of the filing of the complaint. The Court granted the motion and dismissed the complaint against both insureds. The Court further denied Plaintiff’s motion to vacate the dismissal and for a new trial, awarding our clients their costs.
On appeal, Plaintiff argued he was excused from serving the defendants because they “generally appeared” when defense counsel – monitoring the action after the initial order setting aside the default – filed and served notices of change of address of counsel. The Court of Appeal was unimpressed, holding that regardless of what standard of review applied (abuse of discretion, substantial evidence, or de novo), a notice of change of address is not a general appearance, nor waive the necessity of service of the complaint. Since Plaintiff failed to serve the defendants within the period of time required by statute, the dismissal was proper. Thus, Plaintiff’s initial default award in excess of $1MM was erased.
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