What is a Summons?
“Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557 (citing Ault v. Dinner For Two, Inc. (1972) 27 Cal.App.3d 145, 148); Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150 ("fulfilling the statutory requirements of service of process-i.e., service of a summons-is necessary to obtain personal jurisdiction over a party").) When the summons was not served in substantial compliance with the statutory requirements, the court does not obtain personal jurisdiction over the defendant. (MJS Enterprises, Inc.,153 Cal.App.3d at 557)
Name of the Defendant
Under Code of Civil Procedure §474, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint... and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly...” Code of Civil Procedure § 412.20 provides that a summons “shall be directed to the defendant, signed by the clerk and issued under the seal of the court in which the action is pending, and it shall contain . . . the title of the court in which the action is pending [and] the names of the parties to the action.”
Further, Code of Civil Procedure § 474 requires that the summons served on a defendant which the plaintiff intends to name in place of a Doe defendant clearly reflect this. Section 474 provides that “the copy of the summons [must bear] on the face thereof a notice stating in substance: ‘To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).’ The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsements upon the document served as required by this section.”
A summons need not be amended if an amended pleading is served on an existing party; however, an amended summons is required where a new defendant party is added; i.e., it must name the defendant to be added. (Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433.) Further, a plaintiff adding a new party must serve all ADR papers as required by California Rules of Court Rule 3.221(c).
In Billings v. Edwards, the plaintiff brought an action against an exterminator company. (Billings v. Edwards (1979) 91 Cal.App.3d 826.) The defendant argued that service was defective because the summons mistakenly showed service on “John Edwards Pest Control” rather than on “Edwards and Son Pest Control,” the actual corporate name of the defendant. The defendant admitted that copies of the summons and complaint were actually received by officers of the corporation. In reversing the judgment of dismissal, the court held that the minor variance in the name of the corporate defendant was not misleading and did not render plaintiff’s service of process ineffective. (Id. at 831.) The court stated: “The complaint sometimes designates a defendant by a name misspelled or otherwise erroneous . . . , and this mistake may be carried into the summons. However, if the service is otherwise properly made, and the person served is aware that he is the person named as a defendant in the erroneous manner, jurisdiction is obtained. . . .” (Id.)
In Carol Gilbert, Inc. v. Haller, the plaintiff added the defaulted defendant as a doe defendant. (Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852.) The plaintiff then served a summons on the defendant; the summons indicated he was being sued in his “individual capacity.” He failed to answer, and default and ultimately default judgment were entered against him. A year passed, and he discovered the lawsuit when his wages were garnished. He moved to set aside the default and default judgment as void, contending the summons should have identified him as a doe defendant, rather than an individual defendant. The trial court denied the motion, finding substantial compliance with the service requirements. The court of appeals disagreed, and reversed and remanded the case.
Setting Aside a Default Judgment
"[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. 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 (internal citations omitted).) Code of Civil Procedure § 473.5 provides relief from entry of default if such service “has not resulted in actual notice to a party in time to defend the action . . . .” (Code Civ. Proc. § 473.5(a).)
Actual notice has been held to mean “genuine knowledge of the party litigant.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.) A motion to set aside a default based on section 473.5 “shall be served and filed within a reasonable time, but in no event exceeding the earlier of:
- two years after entry of a default judgment against him or her; or
- 180 days after service on him or her of a written notice that the default or default judgment has been entered.”
(Code Civ. Proc. § 473.5(a).)
Required Documents for Motion
A motion to set aside default under Section 473.5 must be accompanied by “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc. § 473.5(c).)
Motion to Quash
A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the Court over the defendant. (Code Civ. Proc. §418.10(a).)
A motion to quash must be made on or before the last day of his or her time to plead, or within any further time the Court may for good cause allow. (Code Civ. Proc. §418.10(a).)
Burden of Proof
When a defendant moves to quash service of summons, 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.)
Lack of Jurisdiction
A defendant may file a motion to quash service of a summons on the ground that the court lacks jurisdiction. Code of Civil Procedure Section 418.10 provides, in relevant part: “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: “(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”
Interpretation and Substantial Compliance
While the cases interpreting Section 412.30 state that its provisions are mandatory, all that is required is substantial compliance in order to render the service of a summons upon a corporation effective. (Schering Corporation v. Superior Court (1975) 52 Cal.App.3d 737, 741.) “The provisions of this chapter should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant . . . . The liberal construction rule . . . will eliminate unnecessary, time-consuming, and costly disputes over legal technicalities, without prejudicing the right of defendants to proper notice of court proceedings.” (Cory v. Crocker National Bank (1981) 123 Cal.App.3d 665, 670 (internal quotes omitted).)
Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code Civ. Proc. § 415.10.) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, substitute service may be effected by leaving a copy of the summons and complaint at the person’s “dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of . . . a person apparently in charge . . . and by thereafter mailing a copy of the summons and complaint by first-class mail . . . to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc. § 415.20(b).) Two or three unsuccessful attempts to personally serve a defendant at a proper place ordinarily qualifies as reasonable diligence. (Board of Trustees of the Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 337.)
Substituted service of the summons and complaint is proper when a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served. (Code Civ. Proc. § 415.20(b).) Substituted service may be made by leaving a copy of the summons and complaint at the person’s usual place of business in the presence of a person apparently in charge of his or her office or place of business, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served. (Id.) Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Code Civ. Proc. § 415.20(b).)
Service on a Corporation or Unicorporated Association
A summons may be served on a corporation by delivering a copy of the summons and complaint to the person designated as agent for service of process, the president, CEO, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or CFO, or a person authorized by the corporation to receive service of process. (Code Civ. Proc. § 416.10.) Code of Civil Procedure Section 412.30 provides: “In an action against a corporation or unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: ‘To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party . . . .’ If service is also made on such person as an individual, the notice shall also indicate that service is being made on such person as an individual as well as on behalf of the corporation or unincorporated association.” Section 412.30 further provides: “If such notice does not appear on the copy of the summons served, no default may be taken against such corporation or unincorporated association or against such person individually, as the case may be.”
Out of State Service
Code of Civil Procedure Section 415.40 provides that service of a summons and complaint upon a person residing outside of California may be accomplished by any of the four methods for serving persons within California – personal delivery, “substitute service,” service by mail coupled with an acknowledgement of receipt, or by publication. Pursuant to Code of Civil Procedure § 417.20 "if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence."
Proof of Service
Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, § 647 (“The return of a process server registered pursuant to . . . the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return”).) However, the presumption only arises if the proof of service complies with the statutory requirements regarding such proofs. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.) Proof of service of summons may be impeached by evidence that contradicts it. (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.)
51-75 of 10000 results
Nature of Proceedings: Motion: Quash Service of Summons This is an action for unlawful detainer. According to the allegations, plaintiff Petrus J. Overgaag Family Trust dated July 3, 2007 is the owner of a commercial warehouse located at 3920 Via Real, Carpinteria, California 93013. On January 5, 2015, plaintiff entered into a verbal month-to-month agreement to rent the warehouse to defendant Jea...
..s unsuccessful, so the notice was posted on the warehouse and thereafter mailed to the premises. Defendant did not cure the default and on May 23, 2016, plaintiff filed its verified complaint for unlawful detainer. The complaint seeks restitution of the premises, plus damages for the balance of rent due from December 1, 2015 to the present. Plaintiff does not know defendant’s residence address or...
Aug 19, 2016
- Judge Donna Geck
Santa Barbara County, CA
1. Defendants’ motion to quash service of summons. No opposition. Motion granted. Compliance with the statutes governing service is essential to establish the court’s personal jurisdiction over a given defendant. See, Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 741. A defendant is under no duty to respond to a defectively served summons, even if the defendant has actual notice of th...
..to do so is subject to a motion to quash. C.C.P. § 415.10 provides that: “A summons may be served by personally delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.” Individual defendants are served by delivering copies of the summons and complaint to them personally or to someone els...
Dec 06, 2019
- Judge ROBERT MOSS
Orange County, CA
Defendant Steven Smith’s Motion to Vacate Default and Default Judgment is GRANTED. Background On August 19, 2016, Plaintiff Jaime Reyes (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendants Fish Shack Donuts N Cakes, Steven Smith and Valley Central LP. Default was entered against Defendants Fish Shack and Smith on August 4, 2017. Default judgment...
..CCP § 473(d). The Court continued the matter to allow Defendant time to file a supplemental declaration regarding his entitlement to relief under CCP § 473(d). Legal Standard Section 473(d) states that the court may “on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 437(d).) “Notice of the litigation does not confer personal jurisdiction...
Aug 02, 2018
Personal Injury/ Tort
Wendy Chang or Jon R. Takasugi
Los Angeles County, CA
TENTATIVE RULING MOTION TO QUASH SERVICE OF SUMMONS AND THIRD AMENDED COMPLAINT (CCP § 472 et seq.) Calendar: 10 Date: 6/2/17 Case No.: BC 610103 Trial Date: N/A Parties: Vosgy Kousayan v. Carl Warren & Company (Los Angeles County), City of Burbank, Burbank Police Department, Does 1-100 Notice: ok Moving Party: Defendant County of Los Angeles (appearing specially to make the instant moti...
..D: Order quashing service of Doe Amendment to add County of Los Angeles (“County”) as a defendant in caption. FACTUAL BACKGROUND AND MOVING PAPERS: This action is one of three related (but not consolidated) lawsuits brought by Plaintiff. In the first of the other two actions, Plaintiff brings claims against “Carl Warren & Company (LA County)”; the City of Burbank; and the Burbank Police Depar...
Jun 02, 2017
Los Angeles County, CA
Nature of Proceedings: Motion: Quash This is an action for civil penalties and injunction brought by the People of the State of California. Defendant Elian Hanna is the owner and operator of defendant Summerland Market, Inc., a gas station and mini-market located at 2285 Lillie Avenue, Summerland, California. Plaintiff contends that the gas station does not have proper sensors in place...
..in the “Notice to Defendant” section, “Elian Hanna” and “Summerland Market, Inc” are listed. At the bottom of the summons, in the “Notice to the Person Served” section, the summons indicates that Hanna is being served as an individual defendant and on behalf of a corporation under Code of Civil Procedure Section 416.10. However, the corporation identified in this part of the summons is “Summerl...
Jan 23, 2013
- Judge Donna Geck
Santa Barbara County, CA
[TENTATIVE] ORDER RE: DEFENDANT BARON ROBINSON’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; GRANTED On October 31, 2018, Plaintiff Marco Antonio Hurtado (“Plaintiff”) filed this action against Defendants Baron Robinson (“Defendant”), Jasmin A. Villatoro, and Queen of the Valley Hospital relating to care and treatment of his gallstones. On October 31, 2018, Plaintiff filed a proof of servic...
..ummons was never issued and alternatively, the summons and complaint were never validly personally served on him. Personal service may be accomplished by personally delivering a copy of the summons and complaint to the person to be served. (Code of Civ. Proc., § 415.10.) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person being served, sub...
Mar 29, 2019
- Judge Laura A. Seigle
Los Angeles County, CA