Low, Ball & Lynch’s

WEEKLY LAW RESUME

June 15, 2006 Issue  By: Ray Coates

 

Civil Procedure - Standard For Service of Process

 

Summers v. McClanahan

(June 12, 2006)

 

Court of Appeal, Second District

 

In 1969, the California Legislature revised laws governing service of process. The Legislature adopted a more liberal approach to service, seeking to uphold jurisdiction of courts and insuring an opportunity for trials on the merits. Since the revisions were adopted, California courts have attempted to implement a more liberal and practical approach when examining service of a complaint on a defendant.

 

In this case, Plaintiff Dirk Summers filed suit against Defendant Rue “Golden Girl” McClanahan for slander, libel and intentional infliction of emotional distress arising out of a failed business venture. Plaintiff’s attorney served the summons and complaint on McClanahan, by leaving copies with her personal manager, Lawrence.  Lawrence then forwarded the papers to McClanahan’s attorney, Edwards. Edwards wrote to Summers’ attorney objecting to certain issues, but did not contend the summons and complaint had been improperly served. McClenahan did not file a responsive pleading.

 

Several months later, Summers attorney mailed a copy of a request for entry of default and proposed judgment to Lawrence. When there was no response from McClanahan, Summers attorney filed the request for entry of default. At the prove-up hearing, Summers presented evidence supporting his claim. The trial court entered a default judgment in favor of Summers in the sum of $3.75 million. McClanahan then filed two motions to set aside the default. The trial court denied the motions and McClanahan appealed. The Second District Court of Appeal reversed.

 

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 effective service. In this case, Summers contended that service on Lawrence resulted in the papers getting to Edwards, and probably McClanahan.

 

The Second District held this was not sufficient. No evidence was presented that Lawrence was McClanahan’s ostensible agent for service of process. Further, Summers did not provide sufficient evidence that there was a close connection between Lawrence and McClanahan, making it “highly probable” McClanahan would receive actual notice. In addition, no California court has upheld service of process solely on the ground that the defendant received actual notice when there has been a failure to comply with the statutory requirements for service. While California now liberally examines service of process, the Court of Appeal held this does not mean an “actual notice” rule. If Plaintiff need only show that the Defendant received actual notice, regardless of the means used, the court felt this would create a “standardless free-for-all.” The Court, therefore, rejected the substitute service on Lawrence. The default judgment was set aside and the entry of default vacated.

 

COMMENT

 

This case holds that while California courts are to use a liberal or practical approach in analyzing the adequacy of service of process, a plaintiff must still fundamentally comply with statutory requirements for service. The fact that a defendant ultimately receives actual notice is not sufficient. Plaintiff must prove the means used were proper.

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