American Express
Centurion Bank v. Zara,
199 Cal. App. 4th 383 (2011)
Plaintiff American Express filed
suit against Defendant Zara to collect $61,988.85 in damages.
The process server purportedly personally served Zara and described him
on the proof of service as Asian, male, with black hair.
Zara found the summons and complaint on his doorstep 24 hours after the
purported service.
Zara did not answer and a default
judgment was taken. Zara filed a
motion to quash service. Zara,
appearing in pro per, argued that the proof of service did not describe him
accurately, nor did it describe any other member of his household. The trial
court ruled in favor of American Express, stating that “[s]ervice rules are to
be liberally construed to effect service and uphold jurisdiction when actual
notice has been received by the Defendant[ ]”, concluding that the Defendant
received actual notice of the lawsuit.
Zara then appealed.
The appellate court recognized
that a registered process server’s declaration establishes a presumption
affecting the burden of producing evidence, however, Zara rebutted the
presumption. Because the proof of
service misidentified him, the proof of service was “void on its face”, and
showed that the process server did not comply with the rules governing service.
The proof of service, therefore, was untruthful.
Because the plaintiff did not contradict the Defendant’s declaration in
court, nor could they when he appeared in court, the Plaintiff could not meet
the burden of proving facts to show that the service was valid.
The Plaintiff argued that service
was valid because they had “substantially complied with the statutory service
requirements”. The court reasoned
that substantial compliance can only be sustained where 1) the record shows
partial or colorable compliance with requirements which the objection is
predicated, 2) the service imparted actual notice to the defendant, and 3) the
manner and objective circumstances of service were such that it would be highly
likely that it would impart such notice.
Here, Plaintiffs did not meet the first requirement in the analysis.
The court further addressed the
issue when the Defendant received actual notice of the suit, independent of
service. “Actual notice of an action alone … is not a substitute for proper
service and is not sufficient to confer jurisdiction.
[No] California appellate court has gone so far as to uphold a service of
process solely on the ground the defendant received actual notice where there
has been a complete failure to comply with the statutory requirements for
service.” (Summers v. McCalahan,
(2006) 140 Cal.App.4th, 403, 414)
Commentary:
This case raises some interesting
issues.
First of all, unlike the
requirements in many other states, a California proof of service does not
require a description of the person served, unless the person refuses to
identify himself to the process server. Some California process servers do as a
matter of course, others do not.
Because the description was included in the proof of service in this case, the
Defendant was readily able to attack it as being void on its face, and could
show the court in declaration form, and by personally appearing at the hearing,
that the process server had served the wrong person – or, at the very least, the
server had identified the wrong person in the proof of service.
Had the description not been
included, the Defendant who was in pro per, had he known, could have subpoenaed
the process server to attend the hearing.
The court could have ordered, on its own motion, that the Plaintiff
produce the process server to be present and give testimony. Neither was
necessary, and given that the trial court ruled against the Defendant, the
service, likely a bad service, would have still resulted in a default judgment.
This case represents a balance
between a process server’s presumption affecting the burden of proving evidence
under Evidence Code § 647, recently affirmed last May in
Palm Properties v. Yadegar,
194 Cal.App.4th 1419 (2011) and the continuing burden in providing
accurate proof of service, and serving process appropriately.
The lesson in the case is not to
avoid including a description in a proof of service, making it harder for a
Defendant to challenge the service.
A Defendant and the Court can and will have the means to verify whether service
was effected properly.
The case underscores the
importance of providing accurate proof of service, and a requirement to properly
comply with the process serving requirements, irrespective of California’s
“liberal construction” of process serving laws, and even when the Defendant has
received actual notice without proper service.
Read full opinion here.