Metropolitan News-Enterprise


Monday, January 26, 2009


Page 3


Court: Good Faith Excused Defective Summons Publication


By SHERRI M. OKAMOTO, Staff Writer


A plaintiff’s summons in a reverse validation action cutting short the date for responses by interested parties was fatally erroneous for purposes of jurisdiction, but an excusable mistake of law, the Fourth District Court of Appeal has ruled.

Holding that the omission of three days from the response period in the summons was critically important for jurisdictional purposes, but not the kind of error that constitutes inexcusable neglect given the plaintiff’s attempts to comply with applicable requirements, Div. One ruled Thursday that the trial court abused its discretion in denying leave to republish.

The nonprofit Community Youth Athletic Center operates a boxing gym and athletic facility serving at-risk youth as a community center in National City, near San Diego, and its property was among nearly 700 parcels of real property subject to a 2007 city ordinance extending the time period to bring eminent domain proceedings based on designations of blight.

The center filed a reverse validation action in the San Diego Superior Court challenging the ordinance, and sought an order for service by publication on the city and all persons interested in the dispute.

The center notified the city of ex parte proceedings to obtain the publication order, but was initially unable to obtain it due to the trial judge’s absence, and later procured an order signed by the presiding judge.

According to a declaration filed by counsel for the center, he learned after the order for publication was signed that the chosen publication dates posed a problem because one of the newspapers had unexpectedly changed its publication schedule so that it no longer published summonses on Tuesdays.

He then encountered further difficulty obtaining a revised order due to the closure of courthouses for a week due to the wildfires in the area.

The attorney was eventually able to obtain the revised publication order, but testified that he failed to recognize that the response date in the revised summons contained the original response date, abbreviating the response period by three days, and the summons was published with the erroneous deadline.

The city demurred and moved for judgment on the pleadings, contending that service had been inadequate, but the center contended that it had substantially complied with the statutory notice procedures, or in the alterative, had shown good cause for its noncompliance.

San Diego Superior Court Judge William S. Cannon granted the motion for judgment on the pleadings, finding that the statutory requirements for service of process had not been met under Code of Civil Procedure Sec. 861.1, and that the center had not shown good cause for relief.

The statute requires that summons by publication must inform all persons interested in a specified matter that they may file a written answer to the complaint no later than the date specified in the summons, which must be at least 10 days after publication.

Justice Richard D. Huffman wrote on appeal that the abbreviation of the period for responses in violation of Sec. 861.1 was jurisdictional error because the failure to publish a summons in accordance with the statutory requirements deprives the trial court of jurisdiction to rule upon the matter that is the subject of the action.

He also concluded that the center did not establish it had substantially complied with Sec. 861.1’s requirements, and declined to consider whether the doctrine of substantial compliance could apply to the statute.

But, Huffman wrote, while the abbreviation of the time for response was “critically important for jurisdictional purposes,” it was not the kind of inexcusable neglect that would foreclose a finding of good faith error.

Huffman explained that the test for determining whether attorney error in a procedural matter is excusable depends on the nature of the mistake and whether the attorney is otherwise diligent in pursuing the claim.

“When the trial court found a lack of good cause to allow republication and dismissed the case, its decision was apparently made under an incorrect legal standard, that did not take into account the above factors,” he wrote.

“The undisputed facts in the current record present a scenario of an understandable procedural mistake.”

Huffman also noted that counsel for the center had been focused on obtaining the order authorizing publication and encountered unforeseen administrative problems in doing so, and the justice concluded the center had adequately set forth reasons why it had failed to comply with Sec. 861.1 based on the difficulties it encountered in obtaining the publication order.

He further concluded that no further showing of good cause was necessary because the facts were undisputed on any material point and sufficiently established good cause to allow republication of the summons.

Presiding Justice Judith McConnell and Justice James A. McIntyre joined Huffman in his opinion.

The case is Community Youth Athletic Center v. City of National City, 09 S.O.S. 383.


Copyright 2009, Metropolitan News Company