Summary – Carol Gilbert, Inc. v. Haller
California Court Invalidates Service for Improperly Marked Summons
The California Court of Appeal in Carol Gilbert, Inc. v. Haller invalidated service on a defendant who was served with an improperly marked summons. The case highlights the importance in properly completing a capacity notice before serving a defendant, a task that is usually neglected by plaintiff’s attorneys and falls to the process server.
The plaintiff, Carol Gilbert, Inc., filed a breach of contract action naming as defendants a restaurant, Stoa Restaurant (Stoa) and its purported owner, Yoav Gilat (Gilat), and other fictitious “Doe” defendants. After serving both named defendants, the plaintiff’s lawyer ascertained the name of another owner of the restaurant, Amit Haller (Haller), and filed an amendment to the complaint to substitute him as “Doe I”.
A Doe designation is a California anomaly. It allows a plaintiff to file a case to preserve the statute of limitations, and to name unknown defendants, “Doe defendants”, who may be responsible for harm. When the true name of the defendant is discovered, they are brought into a pending case by amendment and served as a “Doe” defendant. Because a summons is issued when the case is filed, it bears only the names of the original parties to the action. When it is served on an unknown party, and brings that new defendant into the lawsuit as a Doe defendant, the summons must be inscribed with the new defendant’s name and the defendant’s Doe designation to let him know how he is being sued.
The process server personally delivered the summons, complaint and amendment to the complaint to Haller. The capacity notice on the summons served on Haller only indicated a check mark as “an individual defendant”, and not as a defendant sued under the fictitiously named Doe I defendant, and did not specifying his name.
Click on the images below to display how the capacity notice was marked on the summons, and an image of how it should have been correctly marked.)
The process server filed a proof of service indicating how the capacity notice designation on the summons was marked when it was served.
The plaintiff dismissed Gilat, but because Haller did not respond, the plaintiff obtained a default judgment against Stoa and Haller.
A year later, after the plaintiff caused an earnings withholding order to be served on Haller’s employer, Haller unsuccessfully moved to vacate the judgment and set aside the default, then appealed.
The court looked to the statutory requirements in CCP § 474 which states:
“No default or default judgment may be entered … unless it appears that the copy of the summons or other process … sta[es] in substance: to the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it.)”
Because the summons lacked notice to Haller that he was being brought into the case as a Doe defendant, and specified him by name, it was a clear violation of the statute.
Plaintiff argued that the amendment to the complaint, also served on Haller, was “in substance”, sufficient notice to Haller.
The court noted that the “process” referred to in the statute, requiring the notice, is a document that is issued in the name of the people, or of a court or judicial officer. “Process” means a writ or summons issued in the course of judicial proceedings. (CCP § 17(b)(6)). The “other process” referenced in the statute was for instances when no process is issued. Since process (a summons) was issued with the filing of the complaint, the notice to the defendant must appear on that document, not on another filed document.
The court quoted Mannesmann DeMag, Ltd. V. Superior Court (1985) 172 Cal.App.3d 1118, a similar case where no capacity notice was checked.
“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law. As a general rule, however, the provisions of the rules governing service of process are to be liberally construed [citation]. [T]he court held the matter was ‘not a case of substantial compliance but one of no compliance at all … and liberal construction [of service statutes] cannot cure a complete failure to comply’ with the statute.”
The summons served on Haller did not comply with the statute because it did not sufficiently notify him that he was being sued as a defendant in the lawsuit.
The question the court then turned to was whether the service substantially complied with the statute.
Substantial compliance requires three preconditions; some degree of compliance with the offended statutory requirement; the objective nature of the attempted service makes it highly probable that it would impart the same notice as full compliance; and it must impart such notice, or at least sufficient notice to the defendant to defend.
Because the summons did not indicate that defendant Haller was being served as a fictitiously named Doe defendant, it did not command him to do anything, and service was fatally defective.
The appellate court reversed the trial court’s denial of Haller’s motion to vacate, and directed the that court to vacate the judgment and set aside the underlying default. Read Full Opinion here
This is the second appellate court case within a year which affected the validity of a judgment involving a capacity notice to a Doe defendant. In that case, the service was valid because the capacity notice was marked correctly, but the process server’s proof of service was incorrect. That court voided the judgment, allowing the defendant to file an answer to the complaint.
Full text of that case – Pelayo v. J.J. Lee Management Co., Inc., (2009) 174 Cal.App.4th 484; 94 Cal.Rptr. 3d 502 – may be found here.