Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. SCVSS141432. W. Robert Fawke, Judge.
Eudene Robert Pfeiffer, in pro. per., for Defendant and Appellant.
Robert E. Schaefer, in pro. per., for Defendant and Appellant.
Richards, Watson & Gershon, T. Peter Pierce, Maricela E. Marroquin; and Michael Estrada, for Plaintiffs and Respondents.
OPINION
RAMIREZ, P. J.
Defendants Eudene Robert Pfeiffer and Robert E. Schaeffer seek reversal of default judgments entered against them in favor of the State of California and the City of Yucaipa. Defendants contend the trial court did not have jurisdiction to enter the default judgments because they were not properly served with the summons and complaint in the action.
FACTUAL AND PROCEDURAL HISTORY
On August 24, 2006, plaintiffs filed a complaint for injunctive and declaratory relief against defendants Pfeiffer and Schaefer. The complaint alleges that defendant Schaefer is the owner of certain real property located at 33022 Avenue E in the City of Yucaipa (the property) and that defendant Pfeiffer resides on the property. In their complaint, plaintiffs sought (1) a declaration that three large storage containers located on the property constitute a public nuisance per se, (2) an order requiring defendants to remove the storage containers from the property, and (3) an order enjoining defendants from keeping any similar storage containers on the property in violation of the Municipal Code. Plaintiffs also sought an order allowing them to obtain a warrant to remove the storage containers and have defendants pay the reasonable costs of removal.
Proofs of service in the record indicate the process server was unable to personally serve either defendant. Both defendants were served with the summons and complaint in the action by substituted service in November 2006. Defaults were entered against each of the defendants; Pfeiffer on January 8, 2007, and Schaefer on January 10, 2007. On May 14, 2007, plaintiffs filed an application for entry of default judgment, permanent injunction, declaratory relief, and an award of attorney fees and costs. In support of the application, plaintiffs submitted declarations by their attorney, a former code enforcement officer, and a director of community development, as well as numerous exhibits.
On May 14, 2007, the San Bernardino Superior Court entered a default judgment against defendants declaring the storage containers a public nuisance, permanently enjoining defendants from maintaining the storage containers on the property, awarding attorney fees and costs for the abatement proceedings to plaintiffs, and allowing plaintiffs to recover their costs by recording a special tax assessment against the property. Thereafter, on May 21, 2007, notice of entry of judgment and judgment were filed and served on defendants by mail. Defendants then filed a verified notice of appeal on June 20, 2007.
DISCUSSION
Our review of a default judgment on appeal is limited to questions of jurisdiction, sufficiency of the pleadings, and excessive damages. (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766–767.) Issues involving liability or the sufficiency of the evidence are not reviewable, because a default constitutes an admission to the allegations in the complaint. (Id. at p. 767; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)
Defendants challenge the default judgments filed against them on jurisdictional grounds, arguing plaintiffs failed to properly effect service of process. Defendants’ attack on the legality of service appears to be twofold. First, they claim service of process was not effective because the process server did not leave a copy of the summons and complaint with a “competent member” of their respective households. Second, defendants argue service of process was not effective because the record shows their legal names were spelled incorrectly in the proofs of service and elsewhere in the action using all upper case letters.
“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439 (Dill).) “However, strict compliance [with the statutes governing service of process] is not required. . . . [S]ubstantial compliance is sufficient,” especially “ ‘ “ ‘if actual notice has been received by the defendant.’ ” ’ ” (Id. at pp. 1436-1437, citing Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778.) When a defendant challenges personal jurisdiction, the burden is ordinarily on the plaintiff to demonstrate “the facts requisite to an effective service.” (Dill, supra, 24 Cal.App.4that p. 1440.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper . . . if the proof of service complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.)
“A summons may be served on a person . . . by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” (Code Civ. Proc., § 416.90.) However, Code of Civil Procedure section 415.20, subdivision (b), sets forth the following procedure for substituted service in lieu of personal service: “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. . . .” (Code Civ. Proc., § 415.20, subd. (b).) “ ‘Ordinarily, . . . two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.’ [Citation.]” (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392.)
Here, the proofs of service filed by plaintiffs demonstrate compliance with the statutory requirements for service on the individual defendants. On December 4, 2006, plaintiffs filed proof of service of the summons and complaint indicating substituted service was made on defendant Pfeiffer as of November 20, 2006, by leaving copies with or in the presence of “JOHN DOE, ADULT MALE, REFUSED TO PROVIDE NAME. DESCRIPTION IS AS FOLLOWS: White Male 65 Years Old, Brown Hair, 6 Feet 1 Inches, 300 Pounds, OCCUPANT.” The accompanying affidavit of reasonable diligence shows personal service on defendant Pfeiffer was attempted at the property on 11 different occasions between October 25, 2006, and November 20, 2006, at different times of the day. Each time, there was no answer at the door. The affidavit also indicates copies of the summons and complaint were mailed to defendant Pfeiffer at the property on November 20, 2006. Under these circumstances, substituted service on defendant Pfeiffer was appropriate, and the filing of the proof of service satisfied plaintiffs’ burden of demonstrating compliance with the statutory requirements for effective service of process.
On December 21, 2006, plaintiffs filed proof of service of the summons and complaint indicating substituted service was made on defendant Schaefer as of November 3, 2006, by leaving copies with or in the presence of “ ‘JOHN DOE’ White Male, Black Hair, 6 Feet 2 Inches, 180 Pounds, OCCUPANT.” The accompanying affidavit of reasonable diligence shows personal service on defendant Schaeffer was attempted at 41170 Valley of the Falls Drive in Forest Falls, California, on five different occasions between October 25, 2006, and November 3, 2006, at different times of the day. Each time, there was no answer at the door. The affidavit also states copies of the summons and complaint were thereafter mailed to defendant Schaeffer at the subject address. Accordingly, substituted service on defendant Schaeffer was also appropriate, and the filing of the proof of service satisfied plaintiffs’ burden of demonstrating compliance with the statutory requirements for effective service of process.
Because plaintiffs met their burden of proof, the burden shifted to defendants to rebut the presumption that service was proper. (Dill, supra, 24 Cal.App.4th at p. 1441.) Defendants do not deny that the process server left copies of the summons and complaint for each of them at their respective residences or mailing addresses on the dates shown in the proofs of service filed with the court. Nor do they deny they had actual notice of the action by receiving copies of the summons and complaint through the mail. In fact, defendants have essentially conceded they had actual knowledge of the action. In their opening brief and at oral argument, defendants have taken the position that “[i]t makes no difference that defendant[s] had actual knowledge of the action.” Instead, defendants attack the propriety of service by arguing plaintiffs did not leave the summons and complaint “in the presence of a competent member of the household” as required by Code of Civil Procedure section 415.20, subdivision (b).
Essentially, defendants’ position, as represented in their opening brief and in oral argument, is that service of process on them was defective, so they had no duty to respond or take any action, even if they actually received the summons and complaint via substituted service under Code of Civil Procedure section 415.20, subdivision (b). To support this position, defendants cite Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808, and Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466. Defendants’ reliance on these cases is misplaced. Both of these cases are procedurally and factually distinguishable. Most significantly, neither case considered whether substituted service of process was effective under Code of Civil Procedure section 415.20, subdivision (b). Rather, the facts under consideration in both cases involved a complete failure of the parties to comply with any of the statutory requirements for service of process. In addition, neither case acknowledge the existence of controlling authority in Pasadena Medi-Center Associates v. Superior Court, supra, 9 Cal.3d at p. 778, which adopted a more liberal construction of the statutory requirements for service of process.
To support their argument, defendants claim their personal appearances do not match the individuals described in the process server’s affidavit, and in any event, the individual present at defendant Pfeiffer’s residence was not a competent member of his household but “a mechanic briefly working on one of the cars located there.” Defendants further claim the individual present at defendant Schaefer’s residence was not a competent member of his household but “a neighbor who regularly walks through Schaefer’s back yard to another neighbor[’]s house.” However, during oral argument, defendant Schaefer did indicate he was aware that an envelope was left at his residence. Defendants’ arguments, which are unsupported by competent evidence, are not enough to rebut the presumption of proper service, particularly when it appears they had actual notice of the action.
We must also reject defendants’ argument service of process was not effective because the record shows their legal names were spelled incorrectly in the proofs of service and elsewhere in the action using upper case letters. Defendants claim their legal names are spelled using a combination of upper and lower case letters, but the names of the defendants shown in the proofs of service filed in the action and elsewhere are all in upper case letters. However, this is a distinction which has no effect on the validity of service or the default judgment entered against defendants. Courts have long recognized that variations in the spelling of a party’s name, and even a misspelling of a party’s name, do not affect the validity of a judgment, particularly when the true spelling and the variation or misspelling have the same sound. As long as it can be shown that “a person was served with process in an action brought against him, the judgment will bind him, although he may have been wrongly named.” (Brum v. Ivins (1908) 154 Cal. 17, 20.) To the extent defendants actually believe they were “wrongly named” in the action by the use of upper case letters, they had the opportunity to assert that defense when they were served. (Id. at p. 19.) Having failed to do so, they cannot, after judgment has gone against them, attack the propriety of service or resist enforcement of the judgment because their names differ somewhat from the parties intended to be served. (Ibid.)
Defendant Pfeiffer also challenges the jurisdiction of the plaintiffs “to regulate his private land” on various grounds. For example, he argues there is a lack of evidence in the record to establish that “the alleged California Codes cited were ever constitutionally adopted and thereafter constitutionally promulgated.” However, these issues are not properly before us because they involve liability or the sufficiency of the evidence and are therefore not reviewable on an appeal from a default judgment. (See, e.g., Corona v. Lundigan, supra, 158 Cal.App.3d at pp. 766-767; Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at p. 1303.)
DISPOSITION
The judgment is affirmed.
Each party to bear their own costs.
We concur: McKINSTER, J., GAUT, J.