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American Express Centurion Bank v. Robert v. Zara

September 20, 2011

AMERICAN EXPRESS CENTURION BANK, PLAINTIFF AND RESPONDENT,
v.
ROBERT V. ZARA, DEFENDANT AND APPELLANT.



Trial Court: Santa Clara County Superior Court Superior Court No. 1-10-CV160923 Trial Judge: Hon. Kevin J. Murphy

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

CERTIFIED FOR PUBLICATION

(Santa Clara County Super. Ct. No. 1-10-CV160923)

Plaintiff American Express Centurion Bank sued defendant Robert V. Zara for damages. Defendant moved to quash service of summons and the complaint on the ground that he was not served. The trial court denied the motion after reasoning that defendant had actual notice. It then granted defendant 10 days leave to file an answer. Defendant elected not to answer, and the trial court entered a default. It later rendered a default judgment against defendant for $61,988.85. On appeal, defendant contends that the trial court erroneously denied his motion to quash. We agree. We therefore reverse the judgment with directions.

Appealability and scope of review

A defendant who seeks review of an order denying a motion to quash must ordinarily petition the appellate court for a writ of mandate. (Code Civ. Proc., § 418.10, subd. (c).)*fn1 However, "a defendant may reserve his jurisdictional objection on appeal if, after the denial of his motion to quash, he makes no general appearance but suffers a default judgment." (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 258.)

"[C]compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

When a defendant argues that service of summons did not bring him or her within the trial court's jurisdiction, the plaintiff has "the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service." (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)

"When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed." (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 508.) But we "independently review [the trial court's] statutory interpretations and legal conclusions [citations]." (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230 (Gorham).) background

The parties tried the motion to quash on defendant's moving papers.

Defendant submitted the proof of service that plaintiff had filed with the trial court. It stated that a registered process server had served "Robert V. Zara party in item 3.a., Asian, Male, 65 Years Old, Black Hair, Brown Eyes, 5 Feet 6 Inches, 160 Pounds" at "435 Rosewood Ave San Jose, CA 95117." It further stated: "I served the party: a. by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to receive service of process for the party (1) on: Sat., Jan. 30, 2010 (2) at: 6:43PM." And it noted that "The 'Notice to the Person Served' (on the Summons) was completed as follows: a. as an individual defendant."

Defendant submitted his own declaration that stated the following: "2. I first noticed a Summons and Complaint in this action at my doorstep, upon returning to my home at or about 8PM on January 31, 2010. [¶] 3. Plaintiff's proof of summons, filed in court, describes me as Asian with black hair. [¶] 4. I am not Asian; nor have I black hair; nor are there any members of my household who fit that description, as was provided for me in plaintiff's proof of service. I have lived alone as the sole member [of] my household for at least the last ten years. There are no other competant [sic] members of my household who could have competantly [sic] received the complaint and summons for this action."

Defendant urged that "It will be obvious that defendant is not Asian and has mostly graying hair, (although colored light brown for the last 5 years, to disguise the gray.)."

Plaintiff argued that the service of process statutes are to be liberally construed and defendant acknowledged "actual notice of the service of the lawsuit in his declaration." It concluded: "Since the purpose of the service statutes is to assure that due process is satisfied, and since in this case, the defendant had actual knowledge of the service, and since the provisions of the service statutes are to be liberally construed to effect service ...


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