Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC378876 Joseph R. Kalin, Judge.
Robert Black, Jr., in. pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
KITCHING, J.
INTRODUCTION
Plaintiff Robert Black attempted to serve defendant Thomas Garvin by mail, but Garvin did not respond and did not sign and return an acknowledgment of receipt of summons. The clerk rejected Black’s four applications for entry of default because of lack of personal service on Garvin (and because of other defects), and the trial court ordered the case dismissed without prejudice. Black appeals that order. We conclude that because Black failed to effectuate personal service on Garvin, the clerk properly refused Black’s applications to enter Garvin’s default. Although Black was advised that he could serve Garvin by publication, Black failed to timely make the motion and showing necessary for the court to order service by publication. Black has not shown that dismissal was erroneous, and we affirm the order dismissing the case without prejudice.
FACTUAL AND PROCEDURAL HISTORY
On October 10, 2007, plaintiff Robert Black, Jr. filed a complaint for personal injury against defendant Thomas Garvin. The complaint alleged a cause of action for intentional deprivation of access to the court of appeal. The complaint alleged that in a prior criminal proceeding in which Black was the defendant, the trial court appointed Garvin as Black’s investigator. The complaint alleged that when the trial court denied Black’s Penal Code section 995 motion to dismiss and Black’s motion to dismiss for deprivation of effective assistance of counsel, Black instructed Garvin to file petitions for writ of prohibition and writ of habeas corpus in the court of appeal, but Garvin failed to do so.
On January 14, 2008, Black applied for entry of default as to Garvin, which was denied because the filing date of the complaint was incorrect, the proof of service was incomplete, and the acknowledgement of receipt was not dated or signed. On February 19, 2008, Black again applied for entry of default as to Garvin, which was denied because the filing date of the complaint was incorrect and because the signed acknowledgement of receipt was not dated or signed.
On April 9, 2008, Black filed a third application for entry of default as to Garvin, which was denied because the acknowledgement of receipt did not indicate service of the summons and complaint, which the recipient had not dated and signed. Black’s fourth application for entry of default as to Garvin on May 14, 2008, was similarly denied because Garvin had not signed and dated the acknowledgement of receipt and Black had not filed the original proof of service.
On August 27, 2008, noting the clerk’s rejection of Black’s May 14, 2008, application for default, the trial court found that the case could not proceed until the clerk had entered default, and set an OSC re entry of default/default judgment.
On December 26, 2008, the trial court found that Black’s application for default did not provide evidence that Garvin was properly served and submitted no notice of acknowledgement of receipt signed by Garvin, who had not been personally served or served by substituted service. The trial court ruled that the case could not proceed until default was entered, and set an OSC re entry of default/default judgment for February 26, 2009. The trial court discharged the OSC on March 10, 2009.
On May 27, 2009, the trial court again found that the case could not proceed until Garvin was served and default was entered, stated that Black could attempt to serve Garvin by publication (Code Civ. Proc. § 415.50, subds. (a) and (b)), and set an OSC why the case should not be dismissed for September 25, 2009, at which time the case would be dismissed if Black had not properly served Garvin and filed a legally adequate proof of service.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
On September 25, 2009, the trial court held a hearing on the OSC, and on its own motion dismissed the case without prejudice.
Black filed a timely notice of appeal on October 8, 2009.
ISSUES
Black claims that the complaint should not have been dismissed because Garvin concealed himself to avoid service, and a summons may be served by mail pursuant to section 415.30 and by publication pursuant to section 415.50.
DISCUSSION
1. Because Service by Mail Was Ineffective, the Clerk Properly Refused to Enter Default
Black claims that because Garvin concealed himself to avoid service, refused mail sent to him on November 3, 2008, successfully secreted himself from the process server, and thus thwarted personal service, it would be anomalous to conclude that Garvin was denied notice and an opportunity to be heard. The issue, however, is whether the court clerk properly refused to enter defaults against Garvin.
Black cites Miller v. Superior Court (1961) 195 Cal.App.2d 779, but Miller did not involve the denial of a default because of plaintiff’s failure to effectuate service on the defendant. In Miller, the trial court granted an order for publication of summons on the grounds of plaintiff’s inability to find the defendant in California after due and diligent search, and defendant’s concealment to avoid service of summons. Thus the defendant was not personally served but was instead served by publication. (Id. at p. 784.) When plaintiffs notified defendant’s counsel of their intention to request entry of default, defendant moved to quash service of summons, claiming he had left California and was never personally served. (Id. at p. 782.) It was in that context that Miller stated: “A person who deliberately conceals himself to evade service of process is scarcely in a position to complain overmuch of unfairness in substitutive methods of notification enacted by the Legislature to cope with such situations. When it satisfactorily appears that a defendant by his own design successfully has secreted himself from the process server and thus thwarted personal service, it would indeed be anomalous to heed an assertion that he had been denied notice and an opportunity to be heard.” (Id. at p. 786.)
Here the defendant neither complained of lack of notice nor moved to quash service by publication. The issue is whether Black could obtain a default against Garvin without having effectuated service on him. Compliance with statutory procedures for service of process is essential to establish personal jurisdiction (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444) and strict compliance with rules prerequisite to entry of a default is required (Pelayo v. J. J. Lee Management Co., Inc. (2009) 174 Cal.App.4th 484, 497). Service of a summons by mail is deemed complete on the date a written acknowledgment of summons is executed and returned to the sender. (§ 415.30, subd. (c).) If a party fails to return an executed acknowledgement of service, service is not effective. (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199.) Failure to serve the summons and complaint on the defendant precludes the clerk’s entry of defendant’s default. (§ 585, subd. (b); Pelayo, at p. 497.)
All four applications for default filed by Black failed to include an original signed acknowledgement of receipt. Service by mail was therefore ineffective, and the clerk properly refused to enter default.
2. Black Has Not Shown That the Trial Court Erroneously Dismissed the Case
Black argues that a summons may be served by publication pursuant to section 415.50. In its May 7, 2009, minute order, the trial court advised Black that he had the option of serving Garvin by publication. The trial court dismissed the case without prejudice on September 25, 2009. Although plaintiff filed a proposed order for publication on that date, the trial court did not sign that order, and Black’s accompanying declaration was not filed. Black has not shown that the dismissal of the case without prejudice was error.
DISPOSITION
The order is affirmed. Black is ordered to bear his own costs on appeal.
We concur: CROSKEY, Acting P. J., ALDRICH, J.