Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce Smith, Judge, Super. Ct. No. 06CECG02276
Esteban Martinez, in pro. per., for Plaintiff and Appellant.
Emerson, Corey & Sorensen, James D. Emerson and Ryan D. Libke for Defendant and Respondent.
OPINION
Before Harris, Acting P.J.; Levy, J.; and Dawson, J.
Appellant, Esteban Martinez, filed a personal injury complaint against respondent, William Becker. Appellant personally served respondent by serving attorney Edward L. Fanucchi. Fanucchi had previously represented respondent in an unlawful detainer matter.
Respondent moved to quash service of the summons and complaint on the ground that Fanucchi was not authorized to accept service on his behalf. Respondent declared that Fanucchi no longer represented him.
The trial court granted respondent’s motion to quash. Appellant contends this was error because no substitution of attorney was filed.
As discussed below, appellant has not demonstrated that the trial court’s ruling was incorrect. Accordingly, the judgment will be affirmed.
DISCUSSION
Code of Civil Procedure section 415.10 provides that “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” Alternatively, the summons may be served on the defendant “by delivering a copy of the summons and of the complaint … to a person authorized by him to receive service of process.” (§ 416.90.)
All further statutory references are to the Code of Civil Procedure.
In its comments on section 416.90, the Judicial Council stated: “‘If the process is delivered to an agent of defendant, such agent must be one who is authorized by law or appointment to receive service of process, and the agent of an individual for other purposes is not necessarily authorized to receive such process.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 411-412, fn. omitted.) Further, although a specific appointment is not required, the “‘principal-agent relationship must be close and enduring enough to make it highly probable that the defendant will receive actual notice.’” (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1017.)
Thus, if the agent is not specifically authorized by appointment or by law to receive service, there must be evidence of a close relationship between the defendant and the person served on his or her behalf such that it would be “highly probable” that the defendant would receive actual notice of the service. (Summers v. McClanahan, supra, 140 Cal.App.4th at pp. 414-415.) Moreover, if such relationship does not exist, the fact that the defendant did in fact receive notice does not overcome the defects in service. (Id. at p. 415.) When a defendant challenges the court’s personal jurisdiction on the ground of improper service, the burden is on the plaintiff to prove the facts requisite to an effective service. (Id. at p. 423.)
Here, although Fanucchi had represented respondent in the past, he was no longer respondent’s attorney at the time of the attempted service. There was no evidence of any current relationship between them.
Appellant’s brief is not a model of clarity. However, he appears to contend that respondent could be served through Fanucchi because respondent had not filed a substitution of attorney. However, appellant’s complaint was a new proceeding and thus respondent had not appeared through Fanucchi in this action. Accordingly, no such substitution of attorney was required.
Appellant has not presented any other relevant argument or authority that would justify this court ruling in his favor. Therefore, appellant has not met his burden of demonstrating that the trial court erred when it quashed service of summons on respondent. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.