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Trackman v. Kenney

August 5, 2010

STEPHEN O. TRACKMAN, PLAINTIFF AND APPELLANT,
v.
MIKE KENNEY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Shelleyanne W. L. Chang, Judge. Reversed with directions. (Super. Ct. No. 99AS02554).

The opinion of the court was delivered by: Hull, J.

CERTIFIED FOR PUBLICATION

The trial court granted defendant Mike Kenney's motion to vacate a default judgment entered in favor of plaintiff Stephen O. Trackman, finding that the evidence showed no actual service on Kenney. Trackman appealed, and argues the trial court mistakenly relied on evidence instead of determining whether the proof of service is void on its face.

Kenney does not defend the trial court's reasoning. As we shall explain, because Kenney's motion was filed more than two years after entry of judgment, the trial court's review was limited to the face of the record, and therefore the trial court erred by considering the evidence attached to Kenney's motion.

Kenney instead argues that the proof of service is void on its face, because the name of the person given the summons was stated as "John Doe, co-resident." Although this theory was not raised in the trial court, it presents a purely legal question, and we elect to reach it. We reject Kenney's contention.

Persons given legal papers often refuse to give their true legal name, and it is an established practice for process servers to identify such persons as "John Doe" or some similar name. Although the use of a fictitious name may at times be risky, leading to a successful evidentiary challenge to service, it does not make a proof of service void on its face.

Accordingly, we reverse the order setting aside the judgment with directions to deny Kenney's motion.

FACTS AND PROCEEDINGS

Based on a proof of substituted service of a complaint naming Mike Kenney as defendant on "John Doe, co-resident," completed by an Arizona registered process server, at an address in Phoenix that Kenney had registered with Maricopa County as his fictitious business name address, Trackman took Kenney's default, entered on January 17, 2003. A copy of the proof of service is attached as appendix A.

A default judgment was entered on April 17, 2003.

On December 15, 2008, Kenney moved to set aside the judgment. In part he contended he was never served, and had no actual notice of the judgment until October 15, 2008, when he was served with notice of domestication of the judgment in Arizona. Kenney conceded he had owned the Phoenix house where service had been made, and had registered that address with Maricopa County as part of his fictitious business name filing. He claimed that at the time service was made, he was living at a house in Maricopa, and he had rented his Phoenix house to a tenant. Although that tenant had told him legal papers had been served at the house, Kenney thought those papers had to do with another legal matter. He claimed that other public filings existed at the time of service that connected him to the Maricopa house.

The trial court vacated the default and default judgment, ruling in pertinent part: "The evidence presented by defendant persuades the Court that he was not served with the summons and complaint and that a diligent search of public records at the time of service would have disclosed his address."

Trackman timely appealed.

DISCUSSION

I. The Trial Court's Reasoning ...


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