Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Super. Ct. No. 146953
Linneman, Burgess, Telles, Van Atta, Vierra, Rathmann, Whitehurst & Keene and Alfred L. Whitehurst for Plaintiff and Appellant.
Lampe & Fromson and Christopher W. Lampe for Defendant and Respondent.
HILL, J.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed a complaint against respondent, N & S Tractor Company, and others on June 27, 2003. On July 7, 2003, a process server purported to serve a copy of the summons and complaint on respondent by personally delivering them to “Diane Antonetti, office manager,” at an address in Dos Palos. Respondent failed to answer and appellant obtained entry of respondent’s default on October 1, 2003. More than three years later, appellant filed a first amended complaint, and had it served on respondent’s president, at an address in Merced. Respondent moved to dismiss the complaint against it for failure to serve respondent with summons and complaint within three years after commencement of the action. Respondent contended Antonetti was not a person authorized to accept service of summons on behalf of respondent and therefore no valid service was made within the three year period. On April 18, 2007, respondent’s motion was granted and appellant appeals. We affirm.
DISCUSSION
Summons and complaint must be served on a defendant within three years of the filing of the complaint. (Code Civ. Proc., § 583.210.) If timely service is not made, the action must be dismissed on motion of an interested person or on the court’s own motion. (§ 583.250.) Such a dismissal is mandatory, subject to exceptions only “as expressly provided by statute.” (§ 583.250; Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396.) The statutory exceptions include a stipulation in writing, a general appearance, waiver, estoppel, and impossibility, impracticability, or futility of service due to causes beyond plaintiff’s control. (§§ 583.140, 583.220, 583.240.) Only valid service satisfies the requirement of service within three years; if service was invalid, a motion to dismiss is properly granted. (Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, 1433.)
Further statutory references are to the Code of Civil Procedure unless otherwise specified.
The first amended complaint was served on respondent more than three years after the filing of the original complaint, and therefore cannot satisfy the requirement of service within three years. Service of the original complaint on Antonetti occurred within the three-year period, but respondent contends Antonetti was not authorized to accept service on behalf of respondent and therefore the service was invalid. Appellant does not contend that any of the exceptions apply to extend the time for service. Rather, appellant contends service on Antonetti was valid and satisfied the statutory requirement of service within three years. The issue, then, is whether service by delivery to Antonetti was valid service on respondent.
“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.) In lieu of personal service, substituted service may be made, “by leaving a copy of the summons and complaint during usual office hours” in the office of the person to be served, “with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint … to the person to be served .…” (§ 415.20, subd. (a).) The proof of service for the July 7, 2003, service indicates that personal service on N & S Tractor Company was made by personally delivering a copy of the summons and complaint to Antonetti. There is no indication that copies of the summons and complaint were mailed to respondent after delivery to Antonetti, and appellant does not contend that substituted service under section 415.20 was completed. Consequently, service was valid only if it satisfied the requirements for personal service on respondent.
Sections 415.10 through 415.95 set out the methods by which service of process may be effected on the “person to be served.” Sections 416.10 through 416.80 identify the persons who may be served on behalf of specified types of defendants, such as corporations, unincorporated associations, public entities, and minors. Section 416.90 specifies who may be served on behalf of “a person not otherwise specified in this article,” which includes an individual defendant.
“‘Service on a corporation … can only be accomplished by serving some individual as its representative. Section 416.10 enumerates the individuals who are authorized to receive service on behalf of an ongoing corporation ….’ [Citation.] ‘Service is effected by delivering a copy of the summons and a copy of the complaint to one of these persons by a method of service specified in’ the code. [Citation.]” (Dill v. Berquist Construction Co., Inc., supra, 24 Cal.App.4th at p. 1435.)
The complaint alleged that respondent is a corporation. In support of the motion to dismiss, respondent presented uncontradicted evidence that it is a corporation. Accordingly, personal service on respondent was required to be made by delivering a copy of the summons and complaint to “the person to be served” on behalf of the corporation, and the appropriate person was identified in section 416.10.
In support of its motion to dismiss, respondent submitted the declaration of Arthur Nutcher, who stated that he is the president of and registered agent for service of process for respondent and “[a]t no time has Diane Antonetti … ever been an Officer of any kind in the corporation, or a General Manager, or authorized person to receive service for the corporation.” Appellant submitted no contrary evidence. Thus, the only evidence before the trial court demonstrated that Antonetti was not one of the persons identified in section 416.10 as a “person to be served” on behalf of the corporation. Accordingly, the trial court correctly determined that service by delivery of a copy of the summons and complaint to Antonetti was invalid.
Appellant argues that section 416.90 authorized service on Antonetti as an ostensible agent of respondent. Section 416.90 provides: “A summons may be served on a person not otherwise specified in this article 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.” Appellant’s argument, however, “fails because it ignores the distinction between a ‘party’ and a ‘person to be served’ on behalf of that party, which is central to the statutory scheme governing service of process. ‘The words “person to be served” are words of precision, used throughout the act, intended to refer to the “individual” to be served, and not to the “party.” For example, reference is to the vice president of defendant corporation who is being served on behalf of the corporate defendant, and not to the corporate defendant.’ [Citation.] Since a corporate defendant can only be served through service on some individual person, the person to be served is always different from the corporation.” (Dill v. Berquist Construction Co., Inc., supra, 24 Cal.App.4th at pp. 1435-1436.)
The party in this case is N & S Tractor Company, a corporation. It was required to be served pursuant to section 416.10, which identifies the persons to be served on behalf of a corporation. It could not be served pursuant to section 416.90, which applies only to “a person not otherwise specified in this article.” Since corporations are specified in section 416.10, they are not persons “not otherwise specified in this article,” and cannot be served pursuant to the catch-all provision of section 416.90.
Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, supports this conclusion. There, plaintiffs served various defendants, both individuals and business entities, by serving an attorney they contended was defendants’ agent and was authorized to receive service of process for each of them. (Id. at p. 1015.) Defendants moved to quash service, asserting the court lacked personal jurisdiction because the attorney was not authorized to receive service of their behalf. (Ibid.) The court concluded the business entity defendants were “business entities of a type specified in the sections other than section 416.90,” and therefore were not “persons ‘not otherwise specified,’” and could not be served pursuant to section 416.90. (Warner Bros. Records, Inc. v. Golden West Music Sales, supra, 36 Cal.App.3d. at p. 1016.) It affirmed the order quashing service on the business entity defendants. (Ibid.)
The court went on to conclude that section 416.90 applied to service on the individual defendants, who could be validly served pursuant to section 416.90 through service on an ostensible agent. The court reversed the order quashing service on the individual defendants and remanded for the trial court to determine whether the attorney was the ostensible agent of the individual defendants. The court did not hold that a corporation could be validly served by service on any ostensible agent of the corporation; rather, it required that service be made on a business entity through service on one of the persons specified in the section pertaining to that type of business entity. Where the person to whom copies of the summons and complaint were delivered did not purport to be, and was not alleged to be, one of the persons specified in section 416.10 on whom service of summons could be made on behalf of the corporation, no question of ostensible agency or authority was raised.
Even if service on a corporation may be made by delivering a copy of the summons and complaint to a person who was ostensibly one of those listed in section 416.10 (an officer, general manager, or agent for service of process of the corporation), appellant presented no evidence that Antonetti was an ostensible officer or agent for service of process of respondent. “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300.) “Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” (Civ. Code, § 2317.) “‘Ostensible authority is not established by the statements and representations of the agent. It is created only by the acts or declarations of the principal.’ [Citation.]” (Dill v. Berquist Construction Co., Inc., supra, 24 Cal.App.4th at p.1438, fn. 11.) Thus, ostensible agency requires conduct by the principal, which causes another to believe that an agency exists. Appellant presented no evidence of any conduct of respondent that led him to believe Antonetti was an officer of respondent or some other person specified in section 416.10, with authority to receive service of process on respondent’s behalf. The only declaration submitted in opposition to the motion to dismiss was that of Jean Burns; she discussed only a telephone call with Antonetti and her own actions after the purported service of summons on Antonetti.
“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., Inc., supra, 24 Cal.App.4th at p. 1440.) “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Appellant failed to prove the facts necessary to establish valid service on respondent within the three-year period. Appellant appears to contend service was valid because respondent received actual notice of the action. He contends the Burns declaration established actual notice and it should not have been excluded pursuant to respondent’s hearsay objection. Even if the Burns declaration had been considered, however, valid service would not have been established.
In Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, the court concluded the service of process statutes should be “‘“liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.”’” (Id. at p. 778.) Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction. “[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McClanahan, supra, 140 Cal.App.4th at p. 414.) Adopting a rule that actual notice to defendant excuses all defects in the manner of service “would constitute a judicial repeal of California's statutory law governing service of process and the adoption of only one rule: A summons may be served on anyone, anywhere, by any means which results in actual notice of the action in time to defend. Clearly this is not what the Supreme Court had in mind when it held the revised service of process law should be liberally construed. One benefit of the liberal construction rule is its tendency to eliminate unnecessary, time-consuming, and costly disputes over service of process issues. An ‘actual notice’ rule would do just the opposite. It would create a standardless free-for-all in which defendants would bring motions to quash service claiming they never received actual notice and, in many cases, plaintiffs would be unable to prove otherwise. In addition, such a rule would put a premium on defendants developing creative ways of evading service thereby thwarting the fundamental principle disputes should be resolved in courts, on the merits.” (Summers v. McClanahan, supra, 140 Cal.App.4th at p. 415.)
Accordingly, the Summers court found service invalid, where service was made on an individual defendant’s personal manager, who was not authorized to receive service on her behalf, even though, immediately upon receipt, the personal manager forwarded the summons and complaint to defendant’s attorney, who was then representing defendant in another action involving plaintiff. (Summers v. McClanahan, supra, 140 Cal.App.4th at pp. 405-406, 415; see also, Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043 [service on Japanese corporation that did not conform to the Hague Convention held invalid, even though defendant admitted receipt of the papers].)
Consequently, even if respondent somehow received actual notice of the action, that would not excuse appellant’s failure to serve one of the persons identified in section 416.10 on behalf of the corporation. (See Honda Motor Co. v. Superior Court, supra, 10 Cal.App.4th at p. 1049 [“‘Mere knowledge of the action is not a substitute for service, nor does it raise any estoppel to contest the validity of service.’ [Citation].”])
In any event, appellant’s evidence did not demonstrate that respondent received actual notice of the action. The Burns declaration, even if admissible, merely stated that she received a telephone call from Antonetti “indicating to me that she had received service of the summons and complaint, and that she would deliver it to the office in Merced.” At most, this would establish only that Antonetti intended to send the summons and complaint to respondent’s Merced office, not that she actually did so, or that it was actually received by any officer or agent for service of process of the corporation.
Appellant failed to prove the facts necessary to establish valid, timely service on respondent. The complaint against respondent was properly dismissed.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., HARRIS, J.