Wednesday, November 30, 2016
Page 3
Court of Appeal Declares:
Slight Misdescription of Recipient Does Not Invalidate Service of Process
By a MetNews Staff Writer
The Third District Court of Appeal has declined to order that a blue-eyed man be relieved from a $100,282.17 default judgment despite his claim that he was never handed the summons and complaint, a contention he fortified by noting the process server described the person who was served as having brown eyes.
The defendant, Robert Phillips Jr., also pointed out that the person served was estimated to be 63, weighing 170 pounds. He declared that he is “over 190 pounds and I am 67.”
The process server also described the person served as being a 5’8” white male, which does fit Phillips’ description.
In rejecting his motion to be relieved from default, pursuant to Code of Civil Procedure §473(b), Placer Superior Court Judge Michael Jacques said:
“That the process server’s estimated description of the person served does not precisely match defendant is not sufficient to rebut the presumption of proper service, and defendant offers no other information in support of his contention that he was not personally served with the summons and complaint as stated in the proof of service. Defendant otherwise fails to demonstrate mistake, inadvertence, surprise or excusable neglect sufficient to justify relief pursuant to...section 473(b).”
The appeals court agreed. Justice M. Kathleen Butz said in an opinion, which was not certified for publication, that the situation does not resemble that which was present in American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383.
There, she recited, the person who was served was described as an Asian with black hair, while the defendant was neither Asian nor was his hair black. On these facts, the Court of Appeal said, “plaintiff here served the wrong person (if it served anyone at all),” and the defendant’s motion to quash service was erroneously denied.
“Here, however,” Butz wrote, “the proof of service does not indicate a failure to substantially comply with the personal service statute, and Phillips does not overcome the presumption of proper service….The slight physical differences Phillips alleges are not the sort of material differences that support a conclusion of improper service.”
Phillips also contended that his front gate rendered service on him virtually impossible. Butz responded:
“…Phillips’s assertion of improper service, based on his front gate, does not overcome the presumption of proper service—particularly where the proof of service offers a detailed and substantially correct physical description.”
The case is Wells Fargo Bank National Assn. v. Phillips, C080344.
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