Case law Update -- Service of Statement of Damages Upon Pro Se Litigant Properly Made at PO Box Listed in Substitution of Attorney Form

 

 

In an opinion written by Justice Lui, the Court of Appeal of the Second District, Division Two, of California, has upheld a default judgment against a party in propria person. (Backlund v. Stone (October 27, 2025).) (https://courts.ca.gov/opinion/published/2025-10-27/b340369 .). The court summarized the extensive factual and procedural background  of the case very succinctly:

 

In 2010, Alyssa Backlund (Backlund) sued Christopher Stone (Stone) for defamation, intentional infliction of emotional distress (IIED), and related claims. Her complaint did not specify any amounts of damages. Stone hired counsel and defended the lawsuit for some time before his counsel filed a substitution of attorney form, showing that Stone was now self-represented, and listing a P.O. box as Stone’s address. Stone then failed to appear or to defend the action, leading to his answer being stricken. Backlund mailed a statement of damages to the address Stone provided on the substitution of attorney form and then got a default judgment against him for more than $1 million. Backlund renewed the judgment almost a decade later. Stone moved to vacate the renewal on the grounds that the default judgment was void for lack of due process, in that (1) Backlund’s action was not one for personal injury, and thus the damages had to be specified in the complaint; (2) even if a statement of damages was appropriate, Backlund did not use the form the Judicial Council adopted for that purpose; and (3) Backlund failed to properly serve Stone with the statement of damages. We reject Stone’s contentions and affirm. (Id., p. 2.)

 

The court thus expressly rejected the contention the judgment was invalid because the statement of damages was served by plaintiff upon the defendant at the PO Box given in the substitution of attorney form.  As the appellate opinion teaches, in filing this form the defendant "appeared" in the action (even assuming arguendo he had not appeared before this date).  It was therefore proper under Code of Civil Procedure section 1013 to serve the statement of damages by mail at this address:

For both a statement of damages and a statement to preserve punitive damages: (1) “If a party has not appeared in the action, the statement shall be served in the same manner as a summons,” or, (2) “If the party has appeared in the action, the statement shall be served upon [their] attorney, or upon the party if [they have] appeared without an attorney, either in the same manner as a summons . . . or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14.” [Citation.]

 

In this case, Stone had appeared in the action, first represented by counsel, and then self-represented. He thereby triggered the second branch, under which service may be made “upon the party if [they] have appeared without an attorney”. . . .

 

Backlund properly served her statement of damages by mailing it to the P.O. box Stone listed on his substitution of attorney form, which was the only address for Stone on file when Backlund served the statement. Stone argues that his former counsel’s office was his “address of record” when Backlund mailed the statement of damages because no notice of change of address had been filed, “regardless of whatever was written on the Substitution of Attorney form.” He thus argues that, assuming service by mail was permissible, Backlund was required to serve the statement on his former counsel, despite the notice he gave that counsel no longer represented him. This argument defies common sense. Stone’s substitution of counsel form served as a notice of change of address in this case, because it notified the court and the parties that Stone was no longer represented by his former counsel and provided Stone’s current address.

(Id., pp. 11-12; emphasis added.) 

 

Lessons for Practitioners

 

Perhaps the most important part of the decision is the discussion that gives the Court's blessing to reliance by opposing counsel upon a "new" address given by a substitution of attorney form.  As happened here, it is common for attorneys to withdraw from representation and provide little information about the client''s whereabouts, often, as is the case here, only providing a PO Box.  In these situations opposing counsel really has no choice but to rely upon the new address given on this form.  This is especially true where the substitution is signed by the party which is now self-represented, but this self-represented party is otherwise out of communication with opposing counsel.

 

 

 

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Spotlight on Rhetoric - The comments of Secretary Bessent Begs the Question About how to Call Out an Out of Control Opponent

 

Query:  When, if ever, is it appropriate to call out the tactics of an opponent by naming the perpetrator?

 

To many the answer, at least while engaging in oral argument before a court is never.  But the recent rhetoric of perhaps our best-ever Secretary of the Treasury, Scott Bessent, raises the issue.

 

As summarized by Google, Secretary Bessent named a particular Chinese Communist Party official,  Li Chenggang, as the gentleman who had been attempting to derail a crucial trade deal with inflammatory language and displays of pure aggression:

 

As of October 2025, U.S. Treasury Secretary Scott Bessent has publicly called out Chinese official Li Chenggang by name

. Bessent's strong criticism of Li's behavior during a visit to Washington in August 2025 led to China dismissing Li from his position as a lead trade negotiator. 

Key details of the incident:

• The officials: U.S. Treasury Secretary Scott Bessent and Chinese trade negotiator Li Chenggang.
• The event: Bessent accused Li of arriving in Washington uninvited in August 2025 and acting in an "unhinged," "disrespectful," and "very incendiary" manner during trade discussions.
• The reason for the dispute: Bessent claimed Li threatened that "China will cause global chaos" if the U.S. proceeded with its plan to charge port fees on China-linked vessels.
• The outcome: In October 2025, China removed Li from his post shortly after Bessent's public comments. Li had also previously been serving as China's representative to the World Trade Organization.

 

Assuming Bessent is correct about what Mr. Li said, one many debate whether it was proper to call him out individually, and, assuming doing so was effective rhetoric (it was), what does this tell us about litigation strategy?  Most litigators have encountered opposing counsel who act unprofessionally and, even worse, may hide documents, intimidate third-party witnesses, or ignore court orders.  Though the temptation is to  mention the person by formal name in one's papers and oral argument, the generally-accepted practice is to refer to the conduct as being that of "plaintiff's counsel" or, if one can do this without a trace of irony, "my colleague on the other side."

 

This, of course, is designed to show the court the dispute is over the tactics of opposing counsel and not a personal dispute.  However, there are times it may be wise to let the court know, with grace and subtlety, that there is not a "war" between the firms or ever between the parties, though the latter certainly have issues to resolve.  Rather, the court may need to know that a particular counsel is the problem and that you would like to remain civil and have the behavior improve rather than responding in kind with a personal attack.

 

In this case, one somewhat subtle but still effective line of argument, to the effect the real issue is the conduct of a particular lawyer on that case, is the following:

 

Your honor, we are disappointed we have to bring to your attention our colleague's improper attempts to contact the witness [or whatever].  Our firm has worked well with opposing counsel's firm on prior issues, and we hope to do so in the future, but in this particular case things seem to be different and there seems to be an issue we need to have addressed.

 

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Today is the Two-Year Anniversary of the Genocidal Attack Against Israel

 

Today marks the two-year anniversary of the genocidal attack by Hamas against Israel and its people, as well as several Americans. 

 

We continue to pray for peace, the success of the new peace plan proposed by our President, and for the return of all hostages. 

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