Judges and lawyers call for new ways to serve notice

Problems with personally serving Church of Scientology leader David Miscavige have stalled two Los Angeles County Superior Court lawsuits against him in recent weeks. As a result, plaintiffs' attorneys have accused him of purposefully evading service, with a party requesting permission to serve him by publication.

With that request pending in one case and a motion by Miscavige to quash the summons granted in the other, some legal professionals wonder if changes to the Code of Civil Procedure to allow for more alternative methods of service are in order.

The two cases involved subpoenas to Miscavige, who faces lawsuits related to alleged harassment of actress and former Scientology member Leah Remini and claims of sexual assault against the church and Miscavige himself. Leah Remini v. Church of Scientology et al., 23STCV18300 (L.A. Sup. Ct., filed Aug. 2, 2023).

Los Angeles County Superior Court Judge Robert Broadbelt

Miscavige has been difficult to serve personally in both cases, according to court records. A tentative ruling that was ultimately adopted by Judge Robert B. Broadbelt described attempts by plaintiffs' counsel in the assault case to serve Miscavige by proxy in September 2023 by providing the summons and complaint to security guards at church facilities in Los Angeles and Hollywood. Jane Doe v. Doe Defendant 1 et al., 22STCV40862 (L.A. Sup. Ct., filed Dec. 29, 2022).

D spite these efforts, Broadbelt quashed the summons, finding that, "Plaintiff has not met her burden to prove the facts requisite to effective substitute service on defendant by leaving the summons and complaint with the security guards."

Meanwhile, Remini's counsel similarly provided documentation of multiple attempts to locate and serve Miscavige, including searches of public records, review of dockets in other cases involving him and reviewing corporate documents from the secretary of state's business records.

"As set forth, plaintiff has demonstrated due diligence in locating Miscavige and Miscavige is concealing his whereabouts to evade service," plaintiff's counsel Carmen S. Scott of Motley Rice LLC wrote in a declaration in support of service by publication.

Attorneys for Miscavige, the Church of Scientology and the Religious Technology Center did not respond to phoned and emailed requests for comment.

Judge Randolph M. Hammock has yet to rule on that application. However, in a column for the Daily Journal in 2021, Hammock said the service by publication process as it stands now "has long ago outlived its goals."

"When I presided over a civil court, I would consistently cast some skepticism over the current service by publication process," Hammock wrote. "Although I would often grant those requests (and even enter default judgments accordingly), I would opine in open court, that as far as I was aware, the last defendant who read in the newspaper that he was currently being sued, and as such, quickly came to the courthouse to timely file a responsive pleading, was in the 1890s."

Hammock was responding to a column written by Judge Michael L. Stern, who expressed similar concerns about the service by publication process and suggested a novel solution: service by email.

"Too often, intended parties of service by publication are never informed that they have been served," Stern wrote. "In many circumstances, this antiquated procedure is no better than someone standing on a street corner wearing a sandwich board and shouting that a party has been sued and should timely respond.

"In our world of technology, pretty much everyone has a cellphone and an email address," he continued. "There is no good reason not to amend the Code of Civil Procedure to add email notice to the list of acceptable ways in which to notify parties that they have been sued."

Similarly, William R. Slomanson, a distinguished professor emeritus at Thomas Jefferson School of Law, floated the possibility of service by social media in a recent phone call.

Slomanson had previously written about a case where an indigent plaintiff was seeking a restraining order against an alleged stalker who was unable to be served personally. Searles v. Archangel, B296011 (Cal.App.5th, filed Jan. 22, 2021).

"That might be an appropriate alternative, particularly in the domestic violence context, where you have a combination of somebody who is desperate to try to get service and is having great difficulty in doing it," Slomanson said. "If you can't get personal or substituted service or service by publication, then this might be something that the Legislature considers for the future."

While the court of appeal held that the plaintiff couldn't serve by social media in that case, Slomanson said the ruling doesn't preclude a court from applying service standards with discretion.

"The court didn't, interestingly enough, say that it didn't have the inherent authority to be able to help the litigant in this case," he said.

Slomanson further noted that the Code of Civil Procedure's restraining order statute only requires that service be "reasonably calculated" to provide notice to a responding party.

"The bottom line is the Legislature says they want to have personal service," Slomanson continued. "That's the best guarantee of due process and not getting a judgment against you you don't know about.

"But the Legislature has spoken," he added. "It says it means 'reasonably calculated to give notice.' The courts say they have the inherent authority, and this judge said he had it."

Asked for comment on the disputes over service, Karin Pouw of the media relations department for the Church of Scientology responded in an email: "Leah Remini has been harassing Mr. Miscavige for more than a decade. Her lawsuit is the latest chapter in Remini's obsession with the Church leader. Motions to quash service were filed because Mr. Miscavige was not properly served. The motions were taken off calendar by agreement"

"As for the other lawsuit, it too is harassment of the church leader. The plaintiff is a cohort of Remini and like Remini, has made provably false claims. The judge granted a motion to quash service because plaintiff did not properly effect service. A second Motion to quash was taken off calendar by agreement. Plaintiff's outrageous allegations about the Church and its leadership are complete fabrications; the litigation is nothing but an attempted money grab."