PEOPLE v. THE BRODERICK BOYS

4/23/07

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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Story continued from Part I ..

The complaint alleges The Broderick Boys is an unincorporated association, consisting of two or more individuals joined together for profit, social, recreational, and other common purposes, which acts by and through its members, both individually and collectively. It also asserts fairness requires that the gang be treated as a legal entity. In treating The Broderick Boys as an association it followed what has been a practice in gang injunction cases. (See Castorena, Civil Gang Injunction Pleadings Manual (Cal.Dist.Attys.Assn. 2000) p. III-315 (Castorena).)

But the next sentence of the complaint alleges The Broderick Boys is a criminal street gang, that is, an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (Pen. Code, 186.22, subd. (f).) The lead officers declaration details the criminal acts of the gang and concludes there are no social benefits of the gang. At oral argument in this court the district attorney characterized it as a domestic terrorist organization.

In California, Unincorporated association means an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not. (Corp. Code, 18035, subd. (a), italics added.) The record does not show that The Broderick Boysa criminal gang under the Penal Code, a terrorist group with no social benefitswas formed, at least in part, for a common lawful purpose.

We are aware, as appellants concede, that the lawful purpose phrase was added effective January 1, 2005, after the complaint was filed but before the summons was served. (Stats. 2004, ch. 178, 10.) But that codified the existing common law rule that an unincorporated association must be formed for a lawful purpose. (7 Cal.Jur.3d (2003) Associations and Clubs, 7, p. 127 [lawful purpose]; 7 C.J.S. (2004) Associations, 2, p. 26 [legitimate purpose]; Exeter Hosp. Medical Staff v Board of Trustees (2002) 148 N.H. 492, 496 [810 A.2d 53, 56]; Peoples Gas System, Inc. v. Acme Gas Corp. (Fla. App. 1997) 689 So.2d 292, 298, fn. 8.) The amendment made explicit what was implied. We have not found any reference to a criminal group being treated as an unincorporated association in California or elsewhere. (Cf., e.g., Barr v. United Methodist Church (1979) 90 Cal.App.3d 259, 265-267 [not mentioning lawful purpose but describing lawful entities]; Camm v. Justices Court (1917) 35 Cal.App. 293, 299 [reading business in predecessor statute to refer to a group for the purpose of transacting as a single body any kind of business, whether for profit to themselves or for charitable or philanthropic purposes], approved by Jardine v. Superior Court (1931) 213 Cal. 301, 317-318 (Jardine); Herald v. Glendale Lodge No. 1289 (1920) 46 Cal.App. 325, 329-330.)

Second, even if the addition of the lawful purpose phrase to the statute did change California law, the new law would govern this case. The district attorney is seeking injunctive relief to remedy the nuisance caused by The Broderick Boys. Because an injunction governs future conduct, the court applies the law existing at the time the decree issues, if the law has changed since the filing of the complaint. (Sontag, supra, 18 Cal.2d at pp. 94-95; United Food & Commercial Workers Union v. Superior Court (2000) 83 Cal.App.4th 566, 575-576 [once [new statutes] took effect at the beginning of this year, the unions were entitled to invoke the new law as a basis for invalidating the existing preliminary injunction and for obtaining summary judgment in Gigantes action for a permanent injunction].)

We are aware that other California cases have treated street gangs as unincorporated associations, but no case has been cited to us which addresses the lawful purpose issue. Cases are not authority for points not considered. (Hart v. Burnett (1860) 15 Cal. 530, 598.)

An entity could have both lawful and unlawful purposes. But the evidence at the default hearing fails to show any lawful purpose of The Broderick Boys. Because the district attorney relies on the method of service applicable to unincorporated associations, and the record does not show that The Broderick Boys meets the statutory definition of such an entity, the method of service does not meet the requirements of state law.

In any event, as we will explain, even if the district attorney could prove that The Broderick Boys was formed for at least some lawful purpose, service on Wolfington alone, a member of unknown rank within the Broderick Boys who promptly disavowed any intention of appearing, was not sufficient under case law requirements for service of unincorporated associations.

b. Service on a Single Member of an Association

The statute provides that where an association lacks an agent or defined officers, one or more members may be served. (Corp. Code, 18220.) In some casesservice on one member may be sufficient. (Jardine, supra, 213 Cal. at p. 310 [discussing a different type of challenge to a predecessor statute, observing it is perfectly consistent with due process to provide that jurisdiction over an association doing business shall result from service upon one or more of its members].) But one or more does not always mean one is enough.

We must if possible avoid a statutory construction raising serious constitutional doubts. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 59-60; Walton v. City of Red Bluff (1991) 2 Cal.App.4th 117, 132-134 [applying rule to avoid possible federal due process notice violation].) As applied to the facts of this case, we construe the statute (Corp. Code, 18220) in harmony with authorities addressing due process notice problems in serving notice on unincorporated associations. Those authorities hold that service on a single member of an unincorporated association, to be effective, must be on a person of sufficient character and rank to make it reasonably certain that the unincorporated association will be apprised of the case. (Bailey v. Transportation-Communication Employees Union (N.D. Miss. 1968) 45 F.R.D. 444, 447; see OConnor v. Altus (1975) 67 N.J. 106, 128 [335 A.2d 545, 556] [a two-pronged test that the representative should be so integrated with the organization that he will know what to do with the papers and that he or she should stand in a position as to render it fair, reasonable and just to imply the authority to receive service]; Bailey v. Boilermakers Local 667 (N.D. W.Va. 1979) 480 F.Supp. 274, 278; Operative Plasterers, Etc., Assn. v. Case (D.C. Cir. 1937) 93 F.2d 56, 65 [whose character in relation to the association is such that it could be reasonably expected that he would give notice, quoting Brotherhood of Railroad Trainmen v. Agnew (1934) 170 Miss. 604 [155 So. 205, 207]; Hanley v. Sheet Metal Workers Internat. Assn. (1956) 72 Nev. 52, 55 [293 P.2d 544, 545] [such as to give reasonable assurance that notice of the institution of proceedings will promptly be conveyed to those having the responsibility of defending]; American Football League v. National Football League (D.Md. 1961) 27 F.R.D. 264, 269 [so integrated with the organization that he will know what to do with the papers].) Even when representative actions were used to enable associations to appear, absent a statutory norm for service, service upon the principal officer of the association sufficed. (Sturges, Unincorporated Associations as Parties to Actions (1924) 33 Yale L.J. 383, 387, 400-401; see Hamilton v. Delaware Motor Trades (1931) 34 Del. 486 [155 A. 595, 596] [absent a statute, service on president held good].) Such conclusion would seem to carry out fairly the requirement of reasonable notice in light of the examples already noted. It is workable. (Sturges, supra, 33 Yale L.J. at p. 401.)

The California Law Revision Commission has observed:

[Former] Code of Civil Procedure section 388 provides that service upon an unincorporated association may be made by serving any member. The legislative assumption seems to be that each associate is actively interested in the organizations welfare and will transmit the papers with which he has been served to the appropriate officers. This may be the case where the defendant entity is a partnership; however, if it is a social club, a large labor organization, or even a church, there is no real assurance that the member served will notify the associations officers. Under the statute a plaintiff can enhance the possibility of default by carefully arranging to serve a member who is disinterested or even hostile to the association. (8 Cal. Law Revision Com. Study (1967), p. 936, italics added.)

Based on these authorities we construed the one or more provision of Corporations Code section 18220 to encompass the rule that service on one member must be on a responsible member, otherwise service on more than one is required.

The district attorney knew of veteranos and shot callers yet served only Billy Wolfington, whose rank is unknown but who was characterized as a soldier at oral argument in this court; further, when served Wolfington disavowed any intention to appear. Thus, whether he would tell others was a matter of chance.

On this record, service on Billy Wolfington alone was insufficient under state law absent proof that he was of sufficient rank and character within The Broderick Boys that it is reasonable to infer that service on him effectively apprised the gang of the pendency of the legal proceeding.

As we explain, neither of the next two arguments tendered by the district attorney demonstrate that service on one gang member of unknown rank was reasonably calculated to achieve notice in this case, therefore such manner of service does not meet the Mullanefederal due process standard.

2. Custom in Gang Injunction Cases

The district attorney asserts he followed the method of service used in other cases, indicating a practice or custom of serving a single gang member. But the records in both the Kick Ass Mexicans and Canoga Park Alabama cases show that the prosecutors in those cases served seven members in each case.

The trial court stated that there was no legal requirement for the district attorney to serve all gang members. That is not what appellants argued: They contended that their requests for judicial notice showedas a factual matterboth that the practice in other counties established a norm of serving many members and that the records of Yolo County showed that many members of this gang could have been located and served (because they were in prison, on bail, and so forth).

This evidence was relevant as it had a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The evidence is relevant to the feasibility of other methods of service, which in turn had a tendency in reason to show that the method employed was not reasonably calculated to apprise the gang of the suit. (Mullane, supra, 339 U.S. at p. 314 [94 L.Ed. at p. 873].) Because this evidence is relevant, we grant appellants renewed request on appeal for judicial notice of these court records.

In the reported cases multiple members were named and served. (See Acuna, supra, 14 Cal.4th at p. 1113 [38 members named, 24 served] Iraheta v. Superior Court (1999) 70 Cal.App.4th 1500, 1502 [gang and 92 members]; Englebrecht, supra, 88 Cal.App.4th at p. 1242 [gang and 28 members].) In the cases subject to judicial notice, many members were named and served in San Diego and Santa Barbara County cases, as in the two Los Angeles County cases discussed above. In one Ventura County casewhich appellants assert is the only other case in which the gang was named as the sole defendantthe trial court on its own motion ordered that service be accomplished both by serving several gang members and by publication in a newspaper of record.

Thus, there is a practice in California of serving notice on several gang members. (See also Castorena, supra, Civil Gang Injunctions Pleadings Manual, p. III-315 [Make sure that the defendants you serve [as gang representatives] are admitted gang members].)

3. The Gangs Internal Network

Finally, the district attorney asserts that the gang has a sophisticated internal communications network by means of which members communicate on matters of common interest. Thus, notice to Billy Wolfington would spread news of the pending case like wildfire and therefore was a reasonable method of service.

The lead officer declared that gang members communicate by cell phones and share informationincluding with incarcerated membersabout different types of law enforcement actions, and if I wanted to contact [The Broderick Boys], the way Id do it is to go out and find a gang member on the street. Theyll pass the word quickly. That officers declaration in opposition to the motion to set aside elaborates as follows:

3. On December 29, 2004, I was present in the parking lot of the West Sacramento Police Department when Investigator Rick Gore of the Yolo County District Attorneys Office served Mr. Wolfington with the ex parte notice of the hearing to seek a preliminary injunction and injunction in this case. This hearing was scheduled for January 3, 2005. Mr. Wolfington was at the police department to pick up his gang registration card. When Investigator Gore gave Mr. Wolfington the notice, he asked Mr. Wolfington if he was a Broderick Boy and Mr. Wolfington responded, Yeah.

4. Investigator Gore told Mr. Wolfington that there would be a court hearing on Monday, January 3, 2005, at 8:30 a.m., if he wanted to appear. Investigator Gore also told Mr. Wolfington that he was looking for any other Broderick Boys who would want to appear. Mr. Wolfington told Investigator Gore that he would not be appearing.

5. After Mr. Wolfington was served, I went to the vicinity of Fifth and C Streets in West Sacramento with Investigator Gore. This location is also within the Safety Zone. Within twenty minutes of the time when Mr. Wolfington was served, I saw him talking to Douglas Allen, another validated Broderick Boy. Several yards away was Michael Hernandez, AKA Snoopy, a third validated Broderick Boy.

6. When asked what they were talking about, both Mr. Wolfington and Mr. Allen denied even talking to the other.

7. I am aware of numerous instances in which the Broderick Boys have communicated informally with each other regarding issues of mutual interest. Such communication is critical to the survival of the gang and its members. In addition to the example above, other examples of such communication are:

A. Within ten minutes of Rudy Tafoya, a Broderick Boy, being served in West Sacramento with the [permanent] injunction in this case, I received a communication from a Broderick Boy in Sacramento wanting to know what was going [on] with Tafoya and describing the police activity that occurred when [Tafoya] was served.

B. At least two Broderick Boys, David Sandoval and Angelo [Velazquez], one of the non-party movants in this case, appeared of their own volition to be served with the injunction at the [police station].

These declarations do not support the claim made at oral argument that there would be any retaliation against Billy Wolfington for not triggering an alarm, they merely show that gang members use cell phones and communicate about police raids and similar actions. Absent evidence that Billy Wolfington occupied some position of authority within the gang, it is speculation to infer that he would necessarily pass along word of a court injunction; indeed, a gang member is less likely to be responsible about such matters than a corporate employee:

In a situation where the defendant is an unincorporated association formed for limited purposes, with a membership of the managements of over fifty buildings, service on any one of the members, without more, cannot reasonably be expected to reach the association as a whole, nor can we say that such service is reasonably calculated to do so. It may be that news of the summons and complaint would spread among some of the building-members; however, due process requirements cannot be met by notice through hearsay or rumor. Some more direct nexus between service and notice is required. (Marchwinski v. Oliver Tyrone Corp. (W.D.Pa. 1978) 461 F.Supp. 160, 166.)

The three claims by the district attorney we have just discussed fail to show that the method of service was reasonably calculated to achieve results, as required. (Mullane, supra, 339 U.S. at p. 314 [94 L.Ed. at p. 873].) In the next section we explain that there were other feasible methods which could have been employed and because those methods were not attempted, the manner of service fails the Mullane federal due process standard.

B. Alternative Methods of Service

A court passing on the adequacy of notice should consider what else might have been done. (Jones, supra, 164 L.Ed.2d at pp. 427-429, 430-433.) [W]e have required the government to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case. (Id. at p. 428.) Where one party knows facts about the other, such as his inexperience or incompetence, extra efforts may be required. (Mennonite, supra, 462 U.S. at p. 799 [77 L.Ed.2d at p. 188].)

Where alternatives are given the complainant is under a constitutional duty to select that alternative that is reasonably calculated to notify the adverse party. . . . [T]he complainant may not select an alternative that he knows [or should know] will not notify the other party when he also knows [or should know] that one of the other alternatives, if selected, would notify the adverse party. (People v. One 1941 Chrysler Sedan (1947) 81 Cal.App.2d 18, 33-34, disapproved on another point in People v. One 1941 Chevrolet Coup (1951) 37 Cal.2d 283, 303; see Mennonite, supra, 462 U.S. at p. 799 [77 L.Ed.2d at p. 188] [choosing one method not reasonable where inexpensive and efficient alternative exists].)

First, the district attorney could have served veteranos or shot callers, rather than one member of unknown rank, and could have served a significant number of gang members. The record shows that shortly after obtaining the permanent injunction the police were able to serve many alleged gang members. They could have served many or all of those same people before obtaining the permanent injunction. For example, Michael Hernandez (Snoopy) was one of the 10 designated alleged members on whom service was authorized by the trial court, and he was seen by peace officers, along with alleged member Douglas Allen, about 20 minutes after Wolfington was served. Hernandez could easily have been served at that time.

Second, the district attorney could have served the gang members known to be in jail or prison. (Robinson v. Hanrahan (1972) 409 U.S. 38 [34 L.Ed.2d 47] [state knewdefendant was in jail; service at home was not reasonable].) Where statutes require regulated businesses to file addresses with the government, mailing notices to those addresses is reasonable. (Miller Family Home, Inc. v. Department of Social Services (1997) 57 Cal.App.4th 488, 491-493 [community care licensee]; Evans, supra, 21 Cal.App.4th at pp. 966-972 [auto dismantler].) Although three of the appellants filed their addresses with the authorities, the district attorney did not serve them, or other

alleged gang members with similarly-filed addresses. (Cf. Mennonite, supra, 462 U.S. at p. 798 & fn. 4 [77 L.Ed.2d at p. 187] [We assume that the mortgagees address could have been ascertained by reasonably diligent efforts].) Looking up some addresses is not too much to expect.

Third, the district attorney could have obtained approval to publish notice in the press. Instead, he waited until the permanent injunction was a fait accompli to publicize it.

In sum, although a defendant is not entitled to heroic efforts or the best possible notice (Dusenbery, supra, 534 U.S. 161 at pp. 170-171 [151 L.Ed.2d at p. 607]), the method of service in this case fell below the requirements of case law for unincorporated associations because it was not reasonably calculated to provide notice to the gang.

Contrary to implications from the district attorneys briefing and argument, appellants did not need to show that they had a good defense once they showed that the judgment was void for lack of service. (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 84-87 [99 L.Ed.2d 75, 80-82]; Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 204-206.)

For lack of adequate notice, the default judgment issuing the permanent injunction against The Broderick Boys is void.

DISPOSITION

The order denying the motion to set aside the judgment as void is reversed with directions to grant the motion.

MORRISON , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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