Evans v. Department of Fair Employment and Housing

Full title: JAMAR JAMES EVANS, Plaintiff and Appellant, v. DEPARTMENT OF FAIR…

Court: California Court of Appeals, Fifth District

Date published: Jun 23, 2008

No. F053051 (Cal. Ct. App. Jun. 23, 2008)

Opinion

JAMAR JAMES EVANS, Plaintiff and Appellant, v. DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Defendant and Respondent. F053051 California Court of Appeal, Fifth District June 23, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from an order of the Superior Court of Fresno County. Super. Ct. No. 05CECG01873 Mark Wood Snauffer, Judge.

Jamar James Evans, in pro. per., for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Louis Verdugo, Jr., Senior Assistant Attorney General, Angela Sierra, Timothy M. Muscat and Anthony V. Seferian, Deputy Attorneys General, for Defendant and Respondent.

OPINION

Levy, Acting P.J.

Appellant, Jamar James Evans, filed a complaint against respondent, Department of Fair Employment and Housing (DFEH), alleging a claim for negligence. On August 30, 2005, appellant attempted to serve DFEH with the summons and complaint by personally serving an employee at the DFEH’s Fresno field office. Thereafter, upon appellant’s request, the court clerk entered a default against DFEH on December 19, 2005.

However, on March 1, 2006, the trial court vacated this default. The court found that the complaint had not been properly served under Code of Civil Procedure¹ section 416.50 and thus the default had been entered in error.

1 All further statutory references are to the Code of Civil Procedure.

Appellant eventually perfected service on May 18, 2006, when counsel for DFEH voluntarily agreed to accept service by mail. DFEH responded by demurrer. After sustaining two of DFEH’s demurrers with leave to amend, the trial court sustained DFEH’s third demurrer without leave to amend and entered judgment in DFEH’s favor.

Appellant has not challenged the sustaining of the demurrer without leave to amend on appeal. Rather, appellant has limited his appeal to the order vacating the default.

As discussed below, the trial court properly vacated the default. Accordingly, the judgment will be affirmed.

DISCUSSION

Section 416.50 sets forth the requirements for service of process on a public entity such as DFEH. Under that section, a summons may be served “by delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.” (§ 416.50, subd. (a).)

As noted above, appellant attempted service on DFEH by delivering a copy of the summons and complaint to an employee at a DFEH field office. Based on this service, the court clerk entered a default against DFEH under section 585, subdivision (b).²

2 Appellant refers to this default as a default judgment. However, a default judgment was never entered. After a default is entered, a plaintiff must apply to the court for the relief demanded in the complaint before judgment can be rendered in his favor. (§ 585, subd. (b).)

The trial court concluded that this attempted service did not appear proper as the complaint “was not served upon the clerk, secretary, presiding officer, or other head of the governing body.” Accordingly, the trial court vacated the default on the ground that it was entered in error by the clerk.

A court does not have jurisdiction to act in a matter unless there has been service of process in accordance with the applicable code section, here section 416.50. (Oats v. Oats (1983) 148 Cal.App.3d 416, 420.) Thus, if a pleading has not been properly served on the defendant, the court clerk does not have the power to enter a default on that pleading. (Westport Oil Co. v. Garrison (1971) 19 Cal.App.3d 974, 978.) If such a default is entered, the act is in excess of the clerk’s limited power conferred by section 585 and is a nullity. (Ibid.)

Here, the record supports the trial court’s finding that the complaint was not properly served. The proof of service states the complaint was served on “JULIE CARMONA FOR GERALDINE REYES” in Fresno. However, appellant did not establish that either Julie Carmona or Geraldine Reyes was authorized to accept service for DFEH on behalf of its “clerk, secretary, president, presiding officer, or other head of its governing body.”

Without proper service, the court clerk did not have the power to enter DFEH’s default. Accordingly, the trial court correctly vacated that default.

DISPOSITION

The judgment is affirmed. In the interests of justice, costs are not awarded. (Cal. Rules of Court, rule 8.276(a)(4).)

We concur: Cornell, J. Dawson, J.