Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Luis R. Vargas, Judges, Super. Ct. No. GIS9465
AARON, J.
I.
INTRODUCTION
In April 2002, Barry S. Jameson filed a complaint against Dr. Tadesse Desta, alleging numerous claims stemming from Dr. Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated at the Richard J. Donovan Correctional Facility. In September 2005, the trial court granted Dr. Desta's motion to dismiss the case for lack of prosecution. The trial court granted the motion to dismiss on the ground that Jameson "was not diligent in effecting service on Dr. Desta." Code of Civil Procedure section 583.420, subdivision (a) grants a trial court discretion to dismiss an action if service has not been effected within two years of the filing of the complaint. On October 11, the court entered judgment in favor of Dr. Desta.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
Jameson's December 19, 2005 notice of appeal states that his appeal "follows a motion to vacate or reconsider on [December 2, 2005]." Jameson's opening brief makes it clear that he intended to appeal from the court's judgment. We deem Jameson's notice of appeal to extend to the court's judgment; the notice of appeal is timely as to the judgment and Dr. Desta would not otherwise be misled or prejudiced. (See Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 22 ["[A] reviewing court should construe a notice of appeal from an order denying a new trial to be an appeal from the underlying judgment when it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced"].) In light of our reversal of the judgment, we need not consider the appealability or the merits of Jameson's motion to vacate or reconsider.
On appeal, Jameson contends that Dr. Desta's signing of an April 19, 2002 notice and acknowledgement of service establishes that Desta was timely served by mail, pursuant to section 415.30. Jameson argues that the trial court was thus not authorized to dismiss the action pursuant to section 583.420, subdivision (a). We agree that Jameson served Dr. Desta pursuant to section 415.30 no later than June 26, 2002. Accordingly, the trial court erred in dismissing the action for lack of diligent service.
Jameson raises a number of other arguments regarding the trial court's exercise of its discretion in dismissing the action. We need not consider these arguments in light of our conclusion that Jameson timely served Dr. Desta. Jameson also raises several claims pertaining to a July 2005 order in which the trial court sustained Dr. Desta's demurrer to several, but not all, of the causes of action in the complaint. In light of our reversal of the judgment on other grounds, and because Jameson may seek review of the court's ruling on Dr. Desta's demurrer after any subsequently entered final judgment, we need not consider these claims in this appeal. (Cf. Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342 ["An order sustaining a demurrer without leave to amend is not appealable; any appeal must be taken from the subsequent dismissal of the action"].)
II.
FACTUAL AND PROCEDURAL BACKGROUND
Jameson filed the complaint in this case on April 2, 2002. He alleged eight causes of action, including breach of fiduciary duty, professional negligence, general negligence, failure to train, battery, violation of civil rights, intentional infliction of emotional distress, and violation of due process against a number of defendants, including Dr. Desta and officials of the California Department of Corrections and Rehabilitation (Department). In the complaint, Jameson alleged that Dr. Desta, working on behalf of the Department, negligently prescribed the drug Interferon for Jameson. Jameson further alleged that the drug had caused him to suffer serious physical injuries, including irreversible damage to his eyesight.
Jameson styled the complaint in this case as a "petition for habeas corpus, civil rights, and tort complaint." On April 4, 2002, two days after Jameson filed the petition/complaint, the court entered an order deeming Jameson's filing "a civil complaint for damages." The court assigned case number GIS 9465 to this action.
Dr. Desta is the only respondent in this appeal.
On June 26, 2002, Jameson filed a notice of acknowledgement of receipt that was signed by Dr. Desta. The notice and acknowledgement of receipt is printed on Judicial Council of California form 982(a)(4). The caption of the form contains the proper case name, court name, and address of the court. However, the caption incorrectly lists a case number from a prior action that was dismissed without prejudice in September 2000 for failure to exhaust administrative remedies (Jameson v. Terhune (Super. Ct. San Diego County, 2000, No. GIS 3085 (GIS 3085)). Dr. Desta was not a named defendant in the prior action.
A copy of the notice and acknowledgement is attached to this opinion.
The notice and acknowledgement is addressed to "Dr. Tadesse Desta," and states, "This su[m]mons and other document(s) indicated below are being served pursuant to Section 415.30 of the California Code of Civil Procedure." The notice and acknowledgement also states, "Section 415.30 provides that this summons and other documents(s) are deemed served on the date you sign the Acknowledgement of Receipt below, if you return this form to me." The notice and acknowledgement is dated "April 19, 2002," and was sent to Dr. Desta by a person named Rennie Norelli.
The lower third of the notice and acknowledgement of receipt states: "ACKNOWLEDGEMENT OF RECEIPT. [¶] This acknowledges receipt of: (To be completed by sender before mailing)." On the following line is the number "1," with a box next to the words, "A copy of the summons and of the complaint." That box has a check mark in it. Dr. Desta signed the acknowledgment portion of the notice and acknowledgement on a line marked, "Signature of person acknowledging receipt . . . ." However, Dr. Desta failed to indicate the date or dates on which he received and signed the notice and acknowledgement, as is requested on the form.
On June 20, 2002, Jameson served Dr. Desta with a statement of damages and a notice of acknowledgement of receipt by mail. The statement of damages contained the correct case number. Dr. Desta signed and returned the acknowledge of receipt, but did not date it. Jameson filed the acknowledgement of the receipt of the statement of damages in July 2002.
In November 2004, Jameson filed a declaration of lost summons after service. In his declaration, Jameson stated that there was no "original summons" in the case because the matter had initially been filed as a petition for habeas corpus. Jameson further stated that Dr. Desta had signed an acknowledgment of the action, citing the April 19, 2002 and the June 20, 2002 acknowledgments. For reasons that are not clear from the record, the clerk cancelled the file stamp on this declaration.
In light of our conclusion that Jameson effectively served Dr. Desta in June 2002, we need not detail Jameson's actions in the case during the period between June 2002 and November 2004, which Jameson claims demonstrate his diligence in attempting to prosecute this action.
A person seeking a writ of habeas corpus does not serve a summons. (See Pen. Code, § 1473 et seq.; People v. Romero (1994) 8 Cal.4th 728, 737 [summarizing procedures in a habeas corpus proceeding].)
After several refusals by the court clerk to enter a default judgment against Dr. Desta, on February 14, 2005, Jameson again served Dr. Desta, via substitute service, pursuant to section 415.20. In May 2005, Jameson filed a proof of service for the February 2005 service. The proof of service included a declaration from a person named Manuel M. Soares attesting that he effected substitute service of Dr. Desta on February 14. Filed with the declaration were, among other documents, a summons and complaint.
In May 2005, Dr. Desta filed a demurrer to each of the eight causes of action in the complaint. On July 19, 2005, the trial court sustained Dr. Desta's demurrer without leave to amend as to the third, fourth, fifth, sixth, seventh, and eighth causes of action. The trial court overruled Dr. Desta's demurrer as to the first cause of action for breach of fiduciary duty, and as to the second cause of action for professional negligence.
On August 2, 2005, Dr. Desta filed a motion to dismiss the case based on delay in prosecution. In his brief in support of his motion, Dr. Desta argued:
"[Jameson] filed the Complaint on April 2, 2002. Thereafter, he attempted to file a proof of service for a Notice of Acknowledgement of Receipt of the Statement of Damages which was signed sometime in June 2002 by Dr Desta. Plaintiff never served Dr. Desta with the summons and complaint. However, plaintiff attempted to enter a default against Dr. Desta on numerous occasions and on each occasion it has been rejected by the court clerk."
Dr. Desta did not contest that Jameson effectively served Dr. Desta via substitute service in February 2005, but argued that Jameson's failure to serve Dr. Desta before February 2005 constituted inexcusable delay justifying dismissal of the action. Dr. Desta argued, "[Jameson] did not effectuate service of the summons and complaint until two years and ten in [sic] a half months after the Complaint was filed."
Jameson filed an opposition to the motion to dismiss in which he argued, among other contentions, that he had mailed Dr. Desta a copy of the complaint and that Dr. Desta had signed a notice and acknowledgment of receipt in June 2002. In his response, Dr. Desta argued, "Plaintiff on June 20, 2002, had an individual by the name of Rennie Norelli serve Dr. Desta with a Statement of Damages only, he was not served with the Summons or Complaint."
On September 16, 2005, the trial court granted Dr. Desta's motion to dismiss on the ground that Jameson "was not diligent in effecting service on Dr. Desta." With respect to Jameson's attempts to serve Dr. Desta, the trial court stated:
"[Jameson] faults the court for repeatedly refusing to enter a default against Dr. Desta, claiming the court should have accepted a Notice of Acknowledgment and Receipt (NAR) that was purportedly signed by Dr. Desta but not dated. However, the Notice of Acknowledgement and Receipt was for a statement of damages only, not the summons and complaint. Moreover, [Jameson] submitted a Declaration of Lost Summons After Service which stated there was no summons. [Jameson] presumably knew what a summons was since he submitted a copy of a [notice of acknowledgment of receipt] for a summons and complaint for Dr. Desta from case No. GIS 3085."
Jameson filed a motion to vacate or reconsider the trial court's order. The court entered judgment in favor of Dr. Desta, and denied Jameson's motion to vacate or reconsider. Jameson appeals.
III.
DISCUSSION
Jameson claims that the trial court erred in dismissing his case for lack of prosecution on the ground that he failed to timely serve Dr. Desta. Jameson claims that he adequately served Dr. Desta pursuant to section 415.30 within a few months of filing the action.
A. Standard of review
The facts regarding Jameson's service of Dr. Desta on April 19, 2002 are undisputed. Whether such service constituted effective service pursuant to section 415.30 presents a question of law. We review questions of law de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [noting that questions of law not involving disputed facts are reviewed de novo].)
B. Governing Law
1. The requirement and manner of service of process
"'A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action' [citation] . . . ." (Mannesmann Demag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122 -1123.) "A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served." (§ 415.10.) A summons may also be served via "substitute service" (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544), by leaving a copy of the summons and complaint at the defendant's office and by thereafter mailing a copy of the summons and complaint to the defendant at the defendant's office in accordance with the procedures outlined in section 415.20.
In addition to these methods of service, section 415.30 outlines the manner in which service of process may be accomplished by mail:
"(a) A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.
"(b) The notice specified in subdivision (a) shall be in substantially the following form:
"(Title of court and cause, with action number, to be inserted by the sender prior to mailing)
"NOTICE
"To: (Here state the name of the person to be served.)
"This summons is served pursuant to Section 415.30 of the California Code of Civil Procedure. Failure to complete this form and return it to the sender within 20 days may subject you (or the party on whose behalf you are being served) to liability for the payment of any expenses incurred in serving a summons upon you in any other manner permitted by law. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, this form must be signed in the name of such entity by you or by a person authorized to receive service of process on behalf of such entity. In all other cases, this form must be signed by you personally or by a person authorized by you to acknowledge receipt of summons. Section 415.30 provides that this summons is deemed served on the date of execution of an acknowledgment of receipt of summons.
"___________________________________________
"Signature of sender
"ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
"This acknowledges receipt on (insert date) of a copy of the summons and of the complaint at (insert address).
"Date: ___________________________________________
"(Date this acknowledgment is executed)
"___________________________________________
"Signature of person acknowledging receipt, with title if acknowledgment is made on behalf of another person
"(c) Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.
"(d) If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses whether or not he is otherwise entitled to recover his costs in the action.
"(e) A notice or acknowledgment of receipt in form approved by the Judicial Council is deemed to comply with this section."
Section 417.10 outlines the requirements for establishing proof of service. That section provides in relevant part:
"Proof that a summons was served on a person within this state shall be made:
"(a) If served under Section 415.10, 415.20, or 415.30, by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.
"If service is made by mail pursuant to Section 415.30, proof of service shall include the acknowledgment of receipt of summons in the form provided by that section or other written acknowledgment of receipt of summons satisfactory to the court."
A defendant may forfeit or waive his or her right to receive proper service. (E.g., Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1147 ["The rule that a general appearance 'waives' objections to defective service is actually a matter of forfeiture, not waiver"].) "The filing of a demurrer . . . constitutes a general appearance in an action which confers jurisdiction upon the court. . . . A general appearance 'is equivalent to personal service of summons' [citation] and 'waives irregularities in the service of process.' [Citation.]" (Rhyne v. Municipal Court (1980) 113 Cal.App.3d 807, 815-816.)
In addition, a defendant's act of signing and returning an acknowledgment of service of process satisfies service of process requirements. (See In re Marriage of Merideth (1982) 129 Cal.App.3d 356, 362 (Merideth); Smith v. Moore Mill & Lumber Co. (1929) 101 Cal.App. 492, 494 (Smith) ["an acknowledgment of service when made upon a nonresident defendant has the effect merely of personal service without the state"]); see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) [¶] 4:225, p. 4-36 (rev.# 1, 2006) (hereafter Weil & Brown) ["If defendant signs the acknowledgment [provided in section 415.30], it waives further service of process"].)
"As a general rule . . . the provisions of the rules governing service of process are to be liberally construed. [Citation.]" (Mannesmann Demag, Ltd. v. Superior Court, supra, 172 Cal.App.3d at pp. 1122 -1123.) Substantial, rather than strict, compliance with service of process statutes is required. (Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229, 1232 [concluding plaintiff substantially complied with service of process and noting, "Where a reasonable attempt has been made to comply with a statute in good faith, and there was no attempt to mislead or conceal, the doctrine of substantial compliance holds that the statute may be deemed satisfied"].)
In Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313, the court recognized that actual notice of the action is the touchstone for determining the validity of service of process:
"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. [Citations.] Thus, substantial compliance is sufficient. [Citation.]"
(Accord Fireman's Fund Ins. Co., supra, 114 Cal.App.4th at p. 1147 ["Service of summons is required in order to give the defendant notice of the action, as due process demands"].)
2. Time limits for service of process and proof of service
Section 583.210, subdivision (a) provides a three-year limit for serving a summons and complaint on a defendant:
"The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed."
Section 583.210, subdivision (b) provides that proof of service must be filed within 60 days of this three-year period:
"Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant."
3. Dismissal of an action for lack of prosecution
Section 583.130 establishes a preference in favor of disposition of an action on the merits over dismissal of an action for failure to prosecute:
"It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter."
Section 583.420, subdivision (a) precludes a trial court from dismissing an action unless one of a list of enumerated conditions has occurred. That subdivision provides in relevant part:
"The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [¶] (1) Service is not made within two years after the action is commenced against the defendant."
C. The April 19, 2002 notice and acknowledgement of receipt was not materially defective
Dr. Desta signed and returned the April 19, 2002 notice and acknowledgement of receipt indicating that he had been served with a summons and a complaint. We consider two potential defects with the notice and acknowledgment, and conclude that neither rendered service on Dr. Desta ineffective.
1. The listing of an improper case number on the caption of the notice of acknowledgement did not render service ineffective
In its ruling granting Dr. Desta's motion to dismiss, the trial court stated that Jameson had filed a Notice of Acknowledgment "for a statement of damages only." (Italics added.) The trial court suggested that the presence of the case number from the prior case (GIS 3085) on the notice and acknowledgement form indicated that Jameson served Dr. Desta with the complaint from the prior action, rather than the complaint in this action. The court stated, "[Jameson] presumably knew what a summons was since he submitted a copy of a [notice of acknowledgment of receipt] for a summons and complaint for Dr. Desta from Case No. GIS 3085."
Notwithstanding Dr. Desta's statement in the trial court that he was not served with the "Summons or Complaint," it is undisputed that Jameson served Dr. Desta with the complaint in this case. Dr. Desta states in his appellate brief:
"Shortly after filing the petition, Jameson mailed it with a notice of acknowledgement ─ . . . with the incorrect case number ─ on April 19, 2002. . . . Dr. Desta signed and returned, but did not date, the acknowledgment with the prior case number."
As noted in part II, ante, Jameson's initial pleading in this case was styled as a "petition for habeas corpus, civil rights, and tort complaint."
Thus, to the extent the trial court "found" that Jameson served Dr. Desta with a summons and complaint from the prior action (GIS 3085), Dr. Desta has acknowledged that he was in fact served with the complaint in this case. Even without Dr. Desta's acknowledgment, there would be no substantial evidence to support a finding that Jameson served Dr. Desta with the complaint from the prior action. Dr. Desta was not a defendant in GIS 3085. Further, the trial court dismissed GIS 3085 in September 2000, more than a year and a half prior to Desta's signing the April 19, 2002 notice and acknowledgement. In addition, the April 19, 2002 notice and acknowledgement were sent to Dr. Desta within weeks of the filing of this action.
Because it is undisputed that Dr. Desta was served with the complaint in this case, the fact that the notice and acknowledgment form erroneously listed the prior case number in the caption is not a material error that would render Jameson's service of Dr. Desta ineffective. (See Davis v. Allstate Ins. Co., supra, 217 Cal.App.3d at p. 1233 ["timely service of summons and complaint is not invalid because of defects in form which do not frustrate the statutory purpose"].) The fact that Dr. Desta acknowledged that he received a statement of damages, with the proper case number, within a few months of having received the complaint supports the conclusion that the listing of an improper case number of the initial notice of acknowledgment form did not render the April 19, 2002 service ineffective.
2. Dr. Desta's failure to date the acknowledgment did not render it defective
Section 415.30, subdivision (c) provides that service is complete on the date a "written acknowledgment of receipt of summons is executed." Section 415.30 does not provide that service is complete on the date on which the recipient dates the acknowledgement. For this reason, we agree with Jameson that the statute should be interpreted to provide that service is "deemed complete on the date the acknowledgement is signed, not the date it is dated." (See Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 946, 950 [concluding service was deemed complete under section 415.30, subdivision (c) on date clerk "signed the notice and acknowledgment of receipt," italics added]; accord Judicial Council of California form 982(a)(4) ["Section 415.30 provides that this summons and other documents(s) are deemed served on the date you sign the Acknowledgement of Receipt below, if you return this form to me," italics added].) Thus, a recipient's failure to date an acknowledgement of receipt does not render ineffective a sender's service by mail.
The 20-day period discussed in section 415.30, subdivision (d) does not provide otherwise. That subdivision provides only that if the recipient of service fails to complete and return the acknowledgment within 20 days of the date of mailing, the recipient shall be liable for expenses thereafter incurred in attempting to serve the recipient. Section 415.30 does not require that a recipient of service by mail sign the acknowledgement form within 20 days of mailing in order for the service by mail to be effective.
Jameson filed the notice and acknowledgement on June 26, 2002. Thus, June 26, 2002 is the latest date on which Dr. Desta could have executed the written acknowledgment.
D. Dr. Desta's acknowledgment of receipt of the summons establishes effective service
While Dr. Desta acknowledged having received a summons and a complaint in signing the April 19, 2002 form, it is undisputed that Jameson sent only the complaint to Dr. Desta along with the April 19 notice and acknowledgement, and that he did not send a summons.
Section 415.30, subdivision (c) provides, "Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender." Pursuant to the language of section 415.30, subdivision (c), service is "deemed" complete upon the execution of an "acknowledgment of receipt," not the actual receipt of a summons. Further, in accordance with section 415.30 subdivision (b), the notice and acknowledgment form that Jameson sent to Dr. Desta informed him of the effect of his acknowledgment of receipt, stating, "Section 415.30 provides that this summons and other documents(s) are deemed served on the date you sign the acknowledgement of receipt below, if you return this form to me." Such an interpretation is consistent with the "general rule" that an acknowledgement of service establishes effective service. (Merideth, supra, 129 Cal.App.3d at p. 362.)
The language of section 415.30, subdivisions (b) and (c), which deems service to be complete upon acknowledgment of receipt, rather than actual receipt, is consistent with the general principle that a defendant may forfeit or waive its right to receive a summons. (See, e.g., Fireman's Fund Ins. Co. v. Sparks Const., Inc., supra, 114 Cal.App.4th at p. 1147.) Such an interpretation is also consistent with the doctrine of equitable estoppel, which precludes a recipient of service, by virtue of its acknowledgment, from inducing the sender of service to believe service has been perfected, and then later challenging the timeliness of service. (Cf. Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 439-440 ["When the defendant induces the plaintiff to delay service of summons, or to overlook errors in service, and the plaintiff's reliance is reasonable, an estoppel is essential to prevent the defendant from profiting from his deception"].)
Because the acknowledgment of service provided in section 415.30 is "worded as to evidence an intention to waive further service, it partakes of the nature of a waiver . . . ." (Smith, supra, 101 Cal.App. at p. 495.) Therefore, "[i]f defendant signs the acknowledgment [provided in section 415.30], it waives further service of process" (Weil & Brown, supra, [¶] 4:225, p. 4-36), whether or not the defendant actually receives the summons. Accordingly, by acknowledging receipt of a summons, Dr. Desta forfeited any right to further service.
We acknowledge that, under the unusual circumstances of this case in which a recipient acknowledges having received a summons that was not actually sent, there is a tension between the language in section 415.30, subdivision (c) that service is "deemed" complete upon the execution of an "acknowledgment," and the language in section 417.10 concerning proof of service requiring an affidavit presenting "facts showing that the service was made in accordance with this chapter." However, given that section 415.30 sets forth the actual requirements for establishing service, it is the language of this section that must control. A recipient who has agreed to have been "deemed served" (§ 415.30, subd. (b)), may not later "undo" the perfected service by attacking a proof of service on the ground of a defect in service. To allow such a challenge would undermine the very purpose of the acknowledgment.
E. The trial court's order dismissing the case for lack of prosecution on the ground of untimely service must be reversed
The April 19, 2002 notice and acknowledgement demonstrates that Jameson substantially complied with section 415.30 within months of filing the action. Neither Jameson's failure to provide the proper case number on the notice and acknowledgment form, nor Dr. Desta's failure to date the notice and acknowledgment form, render the April 19, 2002 service ineffective. Dr. Desta acknowledged having received a complaint and a summons no later than June 26, 2002, less than three months after the action was filed. In doing so, Dr. Desta forfeited his right to receive further service. In addition, it is undisputed that Dr. Desta received a copy of Jameson's complaint, and thus, that he had actual notice of the action no later than June 26, 2002.
Jameson's alleged delay in serving Dr. Desta was the only basis for dismissal to which the trial court referred in its order granting Dr. Desta's motion to dismiss. A delay of less than two years in service of process is not a ground for dismissal. (§§ 583.410, 583.420, subd. (a)(2); Hawks v. Hawks (2006) 141 Cal.App.4th 1435, 1437.) Accordingly, we conclude that the trial court erred in dismissing the action for lack of timely service.
IV.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to deny Dr. Desta's motion to dismiss. Jameson is awarded costs on appeal.
WE CONCUR: NARES, Acting P. J., IRION, J.