Friday, February 21, 2014
By a MetNews Staff Writer
Service of process was fatally defective where the summons and complaint was left with someone who was in charge of a company’s branch office and then a copy was mailed to the company, rather than any individual officer or manager, the Fourth District Court of Appeal ruled yesterday.
Div. One, in an opinion by Justice Patricia D. Benke, affirmed the court’s granting of Homeward Residential’s motion to set aside a default and default judgment of about $254,000.
Benke explained that Ariel V. Ramos used none of the methods prescribed in the Code of Civil Procedure for service of process on a corporation after filing a complaint in 2011 alleging causes of action related to the foreclosure of a deed of trust on Ramos’s home.
Ramos had opposed the motion to set aside, arguing that he had properly served the corporation, and that any defect in service was merely technical and did not deprive the mortgage company of actual notice of the action.
In 2007, Homeward Residential filed a statement with the Secretary of State’s office designating CT Corporation System as its agent for service of process, with an address located near downtown Los Angeles.
After filing the complaint, Ramos obtained a process server who attempted to serve the mortgage servicing company at a branch office in Irvine. At that time, the server handed an unidentified woman, who claimed to be in charge of the office, the summons and complaint.
The woman advised the server that she could not accept the documents.
The server then mailed a copy of the summons and complaint to the Irvine office, but the copy was not addressed to any individual, and was instead designated to Homeward Residential.
Ramos’ counsel received a copy of the summons and complaint, which had been received at the Irvine address, with a message requesting that Ramos send the service to the CT Corporation at an address in Dallas, Texas.
The following month, Ramos’ counsel sent electronic facsimile letters to the mortgage company’s legal department, informing them that Ramos had filed a complaint against them, that Homeward Residential had not responded, and that Ramose had requested an entry of default.
Ramos then obtained a default judgment, executed a notice of levy against the company’s bank account, and the bank notified Homeward Residential of the execution.
After receiving notice from the bank, the company filed a motion to set aside the judgment, but while the motion was pending, the Orange County Sheriff’s Department disbursed money from the company’s bank account to Ramos.
Benke said that the Ramos’s proof of service was facially defective by not identifying a particular individual to be served. His service, she explained, did not identify any of the officers or managers of the corporation as required by the Code of Civil Procedure §416.10, and instead only identified Homeward Residential at its Irvine address.
This defect, Benke explained, shifted the burden to Ramos to show that service was still substantially in compliance with the rules of civil procedure by delivering the service to Homeward Residential’s designated agent for service, CT Corporation, or by delivering the summons and complaint to someone in charge of the office.
“Ramos did not provide the trial court with any evidence identifying the person to whom the summons and complaint was delivered in Irvine or other evidence from which it might be inferred….[and the] record does not support Ramos’s contention that no agent for service of process was provided to the Secretary of State.”
The case is Ramos v. Homeward Residential, Inc., 14 S.O.S. 872.