Milani v. Ottovich
Filed 8/18/06 Milani v. Ottovich CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
| LOUIS MILANI et al., Plaintiffs and Respondents, v. MARK OTTOVICH, Defendant and Appellant. | A109329 (Alameda County Super. Ct. No. 2002060260) |
Mark Ottovich appeals from a default judgment awarding $151,990.10 in compensatory damages and $100,000 in punitive damages, plus interest and costs, to respondent Louis Milani. Ottovich contends the judgment is void because he was never properly served with the summons and complaint, and he claims there was insufficient evidence presented at the prove-up hearing to support an award of punitive damages. We conclude the record on appeal does not support the conclusion that Ottovich was properly served. Without proper service of process, the trial court had no jurisdiction over Ottovich and the judgment is void. Accordingly, we reverse the judgment.
Factual And Procedural Background
Louis and Ina Milani filed a malicious prosecution action against Ottovich in Alameda County Superior Court on August 2, 2002. The Milanis alleged that Ottovich instituted a civil action against them on June 16, 2000, for breach of a written contract. The Milanis further alleged that, after Ottovich rested his case at a jury trial conducted on April 20, 2001, the court granted the Milanis' motion for nonsuit on the ground that Ottovich had failed to prove the existence of a written contract. The Milanis contended that Ottovich acted with malice and without probable cause in bringing his lawsuit. They sought compensatory damages totaling $64,100, including $21,000 in attorney fees allegedly spent defending against Ottovich's lawsuit. The Milanis also prayed for punitive damages in an unspecified amount.[1] On November 8, 2002, the court approved an amendment to the complaint striking Ina Milani as a plaintiff, leaving Louis Milani as the sole plaintiff.[2]
The record on appeal does not disclose when service of the summons and complaint was first attempted on Ottovich. The record does reflect, however, that Ottovich successfully moved to quash service of the summons, as reflected in a trial court order dated March 20, 2003. In its order granting the motion to quash, the court wrote that Ottovich established he was not present when the process server attempted to serve him, that the process server's description of Ottovich did not match Ottovich or his relatives, and that â€
