Summary – American Express Centurion Bank v. Zara
American Express Centurion Bank v. Zara, 199 Cal. App. 4th 383 (2011) – Court invalidates service based upon faulty proof of service
Plaintiff American Express filed suit against Defendant Zara to collect $61,988.85 in damages. The process server purportedly personally served Zara and described him on the proof of service as Asian, male, with black hair. Zara found the summons and complaint on his doorstep 24 hours after the purported service.
Zara did not answer and a default judgment was taken. Zara filed a motion to quash service. Zara, appearing in pro per, argued that the proof of service did not describe him accurately, nor did it describe any other member of his household. The trial court ruled in favor of American Express, stating that “[s]ervice rules are to be liberally construed to effect service and uphold jurisdiction when actual notice has been received by the Defendant[ ]”, concluding that the Defendant received actual notice of the lawsuit.
Zara then appealed.
The appellate court recognized that a registered process server’s declaration establishes a presumption affecting the burden of producing evidence, however, Zara rebutted the presumption. Because the proof of service misidentified him, the proof of service was “void on its face”, and showed that the process server did not comply with the rules governing service. The proof of service, therefore, was untruthful. Because the plaintiff did not contradict the Defendant’s declaration in court, nor could they when he appeared in court, the Plaintiff could not meet the burden of proving facts to show that the service was valid.
The Plaintiff argued that service was valid because they had “substantially complied with the statutory service requirements”. The court reasoned that substantial compliance can only be sustained where 1) the record shows partial or colorable compliance with requirements which the objection is predicated, 2) the service imparted actual notice to the defendant, and 3) the manner and objective circumstances of service were such that it would be highly likely that it would impart such notice. Here, Plaintiffs did not meet the first requirement in the analysis.
The court further addressed the issue when the Defendant received actual notice of the suit, independent of service. “Actual notice of an action alone … is not a substitute for proper service and is not sufficient to confer jurisdiction. [No] California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice where there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McCalahan, (2006) 140 Cal.App.4th, 403, 414)
This case raises some interesting issues.
First of all, unlike the requirements in many other states, a California proof of service does not require a description of the person served, unless the person refuses to identify himself to the process server. Some California process servers do as a matter of course, others do not. Because the description was included in the proof of service in this case, the Defendant was readily able to attack it as being void on its face, and could show the court in declaration form, and by personally appearing at the hearing, that the process server had served the wrong person – or, at the very least, the server had identified the wrong person in the proof of service.
Had the description not been included, the Defendant who was in pro per, had he known, could have subpoenaed the process server to attend the hearing. The court could have ordered, on its own motion, that the Plaintiff produce the process server to be present and give testimony. Neither was necessary, and given that the trial court ruled against the Defendant, the service, likely a bad service, would have still resulted in a default judgment.
This case represents a balance between a process server’s presumption affecting the burden of proving evidence under Evidence Code § 647, recently affirmed in May, 2011 in Palm Properties v. Yadegar, 194 Cal.App.4th 1419 (2011) and the continuing burden in providing accurate proof of service, and serving process appropriately.
The lesson in the case is not to avoid including a description in a proof of service, making it harder for a Defendant to challenge the service. A Defendant and the Court can and will have the means to verify whether service was effected properly.
The case underscores the importance of providing accurate proof of service, and a requirement to properly comply with the process serving requirements, irrespective of California’s “liberal construction” of process serving laws, and even when the Defendant has received actual notice without proper service.
Read full opinion here.