Metropolitan News-Enterprise


Wednesday, September 21, 2011


Page 1


‘Actual Notice’ Insufficient to Confer Personal Jurisdiction—C.A.




A trial court’s finding that it had jurisdiction over a defendant who had actual notice of the complaint, even though the process server’s declaration of personal service was clearly false, was error, the Sixth District Court of Appeal ruled yesterday.

The court overturned a default judgment for more than $60,000 against Robert V. Zara of San Jose and ordered that service of process on Zara be quashed.

American Express Centurion Bank sued Zara, and a registered process server filed a proof of service stating that he was served on Jan. 30 of last year “by personal service” and “as an individual defendant” at his residence address. It described the person served as “Asian, Male, 65 Years Old, Black Hair, Brown Eyes, 5 Feet 6 Inches, 160 Pounds.”

Motion to Quash

Zara filed a motion to quash, with a declaration stating that he found the summons and complaint on his door step on the night of Jan. 31. He asserted that he was “not Asian” and did not have black hair, that he lived alone, and that no one fitting the description given in the proof of service could have been at his residence to accept the summons.

The plaintiff argued that the service statute had to be “liberally construed” in favor of upholding service, especially because the defendant had actual notice of the proceedings. Zara responded that “liberally construed can only go so far before it becomes—well, it at least must have an attempt to identify the person and an attempt to physically hand the summons to someone.”

The plaintiff’s interpretation, he argued, “would invite servers to fraudulently submit to the court proof of summons which is possibly what happened in my case.”

Motion Denied

Santa Clara Superior Court Judge Kevin J. Murphy denied the motion, holding that because Zara received a copy of the summons and complaint, as he acknowledged, he had actual notice and was subject to the court’s jurisdiction. The judge denied the motion to quash, and gave the defendant 10 days to answer.

Zara did not file an answer, and a default judgment was entered.

But Justice Eugene Premo, writing for the Court of Appeal, said the judgment had to be reversed because service was invalid.

Evidence Code Sec. 647, the justice acknowledged, creates a presumption of service when a registered process server submits a declaration stating that service was made in the manner required by applicable statutes. But Zara, Premo said, rebutted the presumption by showing that the proof of service was “untruthful” in stating that the defendant was personally served.

“In the absence of evidence from the process server, the uncontradicted evidence is that the process server did not personally serve defendant,” Premo said.

Rejecting the plaintiff’s argument that any defect in service was cured by giving actual notice, the justice cited Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, in which the court held that service was void where the summons omitted the required notice that the defendant, who was not named in the original complaint, was being served as a Doe.

‘Colorable Compliance’

The court in that case questioned whether actual notice could ever substitute for statutory service, in the context of a challenge to a default judgment. But if it can, the court said, it can only be where there is “partial or colorable compliance” with the statute and the service is made in a manner that is “highly likely” to impart actual notice.

  In Zara’s case, there was no showing of partial or colorable compliance, Premo said.

“And defendant is not seeking to avoid adjudication of the merits of the plaintiff’s claim,” the jurist wrote. “He is seeking to avoid a default judgment.  Under the circumstances, the undisputed actual notice to defendant cannot suffice to uphold the jurisdiction of the court.”

The case is American Express Centurion Bank v. Zara, H036216.


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