Carter v. Anderson

Filed 9/19/07 Carter v. Anderson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Reversed.

Law Offices of Leech & Associates and Ralph J. Leech for Defendant and Appellant.

Ojo Law Office and Geoffrey Ojo for Plaintiff and Respondent.

1. Introduction

Yvette Carter sued Sharon Anderson, the successor in interest to Andersons adoptive parents, Thomas and Rita Orr, for title to real property and for breach of contract. Anderson appeals from a default judgment in favor of Carter. The primary issue on appeal is whether the trial court abused its discretion in denying Andersons motion to set aside the default and default judgment. (Code Civ. Proc., 473, subd. (b); Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) We conclude the trial court correctly determined defendant Anderson was validly served with the summons and complaint. Notwithstanding that finding, in view of the evidence of surprise and mistake and the errors in the default judgment proceeding, we hold it was abuse of discretion to deny defendants motion for relief from default and the default judgment. We reverse.

2. Factual and Procedural Background

The complaint alleges that on June 18, 1990, Carter^[1]and the Orrs executed a written installment sales purchase contract for 80 acres of unimproved real property. The purchase price was $28,000 with interest at 8 percent, payable in monthly installments of $280, for a term of 13 and 3/4 years. After payment of 20 percent of the principal ($5,600), seller was to deliver a deed to the property and furnish title insurance. The complaint alleges the 20 percent of the principal has been paid and plaintiff seeks to enforce the contract. The complaint also describes a proposal to complete the sale by payment of the outstanding balance of $17,062.05 from Carter to Anderson but alleges the sale was never completed.

Between March 2005 and April 2006, the parties lawyers corresponded about the property but did not achieve a resolution.

On May 18, 2006, Carters lawyer, Geoffrey Ojo, mailed a copy of the summons and complaint to Andersons lawyer, Ralph Leech, at his El Monte address and to Anderson at her business address, on Blaine Street in Riverside, and at her home address, on Ramona Avenue in Nuevo.

On May 31, plaintiff filed a Notice of Pending Action, including a proof of service by certified mail showing service by mail of the notice on Anderson at both addresses. Anderson signed the return receipts.

On June 14, Ojo mailed by priority mail a summons and complaint and acknowledgement of receipt to Anderson at her residence address and a copy of the summons and complaint to Leech at the El Monte address. The post office confirmed both deliveries.

According to a declaration of due diligence, a process server, Justin Hodson, tried to serve Anderson personally at the Nuevo address but was blocked from access by a padlocked gate. He also tried to serve Anderson five times at the Blaine Street address, a beauty shop, but it was never open and no one answered the phone.

The proof of service for the summons and complaint contains the declaration of another process server, Greg Rivera, stating that he served Anderson by substituted service at the same addresses on June 27, 2006, by jamming the summons and complaint in the door of the Blaine Street address and leaving the documents inside the gated driveway of the Nuevo location. He then mailed the documents to the addresses.

On July 14, Ojo mailed a copy of the proof of substituted service to both addresses. On July 28, Anderson signed for the mail delivered to the Nuevo address but she refused delivery for the Blaine Street address.

On August 7, plaintiff mailed the request for entry of default and court judgment on Anderson by priority mail to the two addresses. The court entered Andersons default on August 11.

On August 18, plaintiff filed a request to set a prove-up hearing on the default judgment. A copy of the request was mailed to Anderson at the two addresses.

On August 23, Anderson filed a motion to set aside the default and the default judgment based on Andersons claim she was never personally served with the summons and complaint. Anderson asserted the first notice she had of the lawsuit was August 10 when she received at the Blaine Street address a copy of the request to enter default and judgment. She also maintains she is not the owner of the subject property.

On September 14, the court entered a default judgment against defendant. Subsequently the court denied the motion to set aside the default and the default judgment, ruling that the evidence proved defendant had regularly received mail at her business and residence addresses and she did not rebut the presumption that she received copies of the summons and complaint and therefore was served by substituted service. Defendant appeals from that order.

3. Validity of Service of Summons and Complaint

The threshold issue is whether the court properly found defendant had been served by substituted service. The statute requires that if the summons and complaint cannot with reasonable diligence be delivered to the person to be served, substituted service may be accomplished by leaving a copy of the summons and complaint at the persons dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Code Civ. Proc., 415.20, subd. (b).)

In Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778, the California Supreme Court adopted a liberal and practical approach to service of process [which] has been followed in subsequent Court of Appeal decisions. In Gibble v. Car-Lene Research, Inc. the court stated: It is well settled that strict compliance with statutes governing service of process is not required. Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant. [(Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313; Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1392, (provisions of the service of process statutes are now to be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.)]

Nevertheless there are cases decided after the enactment of the revised statutes which have continued to apply the strict construction rule. In Taylor-Rush v. Multitech Corp., for example, the court stated: A defendant is under no duty to respond to a defectively served summons. The notice requirement is not satisfied by actual knowledge of the action without service conforming to the statutory requirements, which are to be strictly construed. [(Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.)]

. . . It is clear from our Supreme Courts opinion in Pasadena Medi-Center the old rule of strict construction has been rejected and a new rule of liberal construction has been adopted. [(Pasadena Medi-Center Associates v. Superior Court, supra, 9 Cal.3d at pp. 778-779.] (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410-411.)

Defendant argues the substituted service was invalid based on various technical errors or omissions. Defendant challenges the service because the process server did not leave the summons and complaint with a person in charge and over 18 years old. Instead, the process server dropped off the documents at the two addresses where it is admitted no one was present. Defendant argues there was no valid service and the court clerk had no authority to enter a default. (Woods v. Stallworth (1960) 177 Cal.App.2d 517, 520-521.)

Applying the rule of more liberal construction, we are not convinced by defendants arguments that no service was accomplished in the present case. This is not a case involving service by mail on a foreign corporation or the application of the Hague Convention. (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1046; Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1153.) Nor is it a case involving a summons that fails to name a corporate defendant or a judgment entered against an unnamed real party in interest. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555; Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118; Ursino v. Superior Court (1974) 39 Cal.App.3d 611, 617.)

Instead, the circumstantial evidence in the record demonstrates Anderson had actual notice of the complaint against her. (Tavernier v. Maes (1966) 242 Cal.App.2d 532, 540; see Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481.) At least eight times between May and July 2006, Anderson received by mail or by personal delivery at her home and business either the summons and complaint, the notice of lis pendens, or an acknowledgement of receipt involving this action. In May and June, her lawyer received copies of the summons and complaint. The record also demonstrates Anderson seemed to be avoiding personal service by evading two process servers at her home and business. Under these circumstances involving two local individual parties with a history of dealings, including the regular use of defendants home and business addresses and her attorneys business address, the trial court did not abuse its discretion by deciding plaintiff had validly served defendant. The service satisfied due process by giving an interested party actual notice of the proceedings and an opportunity to be heard. (Bein v. Brechtel-Jochim Group, Inc., supra, 6 Cal.App.4th at p. 1392.) In truth, it is far more likely defendant received notice by the means employed for service by plaintiff than if service had been accomplished by publication as proposed by defendant.

The other technical error identified by defendant is that the supporting declaration of due diligence, executed by the process server, Justin Hodson, who made six attempts at defendants business or home, did not include the statement that Hodson was 18 years old and failed to identify what documents he was attempting to serve. Service, however, was actually effected ultimately by the other process server, Greg Rivera, who stated he was at least 18 years old and he served the summons and complaint at the door to the business and at the locked gate outside the residence. The omissions in Hodsons declaration do not invalidate Riveras properly-executed declaration of service.

4. Default and Default Judgment

As to the entry of default, we conclude the court abused its discretion in denying Anderson relief under Code of Civil Procedure section 473, subdivision (b). We discern no extrinsic fraud based on Ojos filing of the proof of substituted service, which accurately described leaving copies of the summons and complaint at defendants home and business where no one was present. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Rivieccio v. Botham (1946) 27 Cal.2d 621.) The better grounds for relief are surprise or mistake (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-472; Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523-524) because the record demonstrates a plausible reason for confusion about when exactly defendant was served and when her response was due although the record also reflects defendant and her lawyer first received copies of the summons and complaint in mid-May 2006 but did not act on the complaint until August 17.

In our view, what finally tips the balance in favor of defendant is the emphasis, as discussed in Rappleyea v. Campbell, supra, 8 Cal.4th at page 982, on a strong public policy in favor of granting relief and allowing the requesting party his or her day in court [and] a strong public policy in favor of the finality of judgments . . . . In the present case, as we discuss below, the default judgment entered was defective in a number of ways and must be vacated. Therefore, it would be an abuse of discretion not to vacate the default as well.

The particular procedures governing a quiet title action are set forth in Code of Civil Procedure section 764.010: The court shall examine into and determine the plaintiffs title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiffs title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law. As explained in Yeung v. Soos (2004) 119 Cal.App.4th 576, 582, an evidentiary hearing in a quiet title action is not properly conducted if [t]he trial court rendered judgment by the normal default prove-up method, including the submission of documents and declarations.

Here the trial court did not conduct an evidentiary hearing. The brief hearing was conducted in about five minutes. Additionally the documents and declaration submitted by plaintiff did not satisfy the ordinary requirements for a default prove-up hearing. (Code Civ. Proc., 585, Cal. Rules of Court, rule 3.1800.) The only evidence was a declaration submitted by plaintiffs attorney, attesting to the amount of his attorneys fees. Otherwise, plaintiff submitted a memorandum of points and authorities and a collection of letters and the purchase contract, none of which were authenticated. Furthermore, plaintiffs submissions seem to acknowledge the balance owing on the property is $17,062.25 but the judgment does not recognize defendant is entitled to that sum as a condition of transferring the property.

Nor was the state of the legal title established and what, if any, title defendant has to the property and whether she can legally transfer it to plaintiff. In a quiet title action the plaintiff must prove his title in order to recover. [Citation.] Merely presenting evidence challenging the defendants title is insufficient. [Citation.] (Preciado v. Wilde (2006) 139 Cal.App.4th 321, 326.)

Finally, there is no explanation how defendant, who was not a party to the land sales contract, can be liable for attorneys fees under the contract. As it currently exists, the judgment seems remarkably inconclusive and likely to generate postjudgment problems or additional separate litigation. For all these reasons, we decide there should be a do-over, the default judgment and the default vacated, and the case reversed and remanded for further proceedings in the trial court. Only then will we feel satisfied there has been conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] [Citation.] (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1180.)

5. Disposition

We reverse the judgment. Defendant as the prevailing party shall recover her costs on appeal. But defendants request for attorneys fees on appeal is premature until the case is ultimately concluded between the parties. (Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959, 961-962; Snyder v. Marcus & Millichap (1996) 46 Cal.App.4th 1099, 1103-1104.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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^[1] Reginald Kevin Carter and Roderick Daryl Carter are also listed as buyers but they are not named parties in this action.