McCray v. Ryan
Filed 10/9/13 McCray v. Ryan CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
EMANUEL McCRAY,
Plaintiff and Appellant,
v.
HAL RYAN et al.,
Defendants and Respondents.
D063242
(Super. Ct. No. 37-2010-00097606- CU-PA-CTL)
APPEAL from
an order of the Superior Court
of
County, Lorna Alksne, Judge.
Reversed and remanded with directions.
Emanuel
McCray, in pro. per., for Plaintiff and Appellant.
McDougal,
Love, Eckis, Boehmer & Foley, Steven E. Boehmer and Carrie L. Mitchell for
Defendants and Respondents.
Plaintiff
Emanuel McCray appeals an order granting a motion
to quash service on certain defendants.
McCray contends the defendants were properly served. Because there is a factual question
concerning whether service was effective, we reverse the order and remand the
matter for a determination of that question.
FACTUAL AND
PROCEDURAL BACKGROUND
In August
2010, McCray filed a complaint in San Diego County Superior Court relating to
the injuries he sustained
when he fell on a transit bus in November 2009.
The complaint named as defendants the Metropolitan Transit System (MTS),
the Metropolitan Transit System Board (MTSB), the San Diego Transit Corporation,
various San Diego area cities and
the County of San
Diego and its Board of Supervisors. On March 21, 2011, McCray filed a first
amended complaint that added as defendants the individual members of the MTSB
and the County Board of Supervisors (Hal Ryan, Marti Emerald, Anthony Young,
Todd Gloria, Sherri Lightner, Jim Cunningham, Jess Van Deventer, Jerry Selby,
Jim Janney, Bob McClellan, Al Ovrom, Jerry Rindone, Ernest Ewin, Ron Roberts
and Harry Mathis) and MTS employee Mark Held (collectively, individual
defendants). On March 30, 2011, McCray delivered a box of
documents to the MTS's offices containing envelopes with the names of each of
the individual defendants on them. Each
envelope contained a copy of a form summons not issued by the court and a copy
of the amended complaint.
Counsel for
MTS, Carrie L. Mitchell, sent a letter to McCray on April 5, 2011, advising him MTS would not accept
service on behalf of the individual defendants and directing him to personally
serve each individual defendant.
Mitchell sent another letter to McCray on April 8, 2011, advising him the summons needed to be
issued by the court. The letter also
directed McCray to send the court-issued summons, amended complaint and
acknowledgments of receipt to Mitchell.
A third letter from Mitchell to McCray, dated April 14, 2011, explicitly stated her law firm
represented the MTS defendants as well as the individual defendants. It further advised McCray to "direct all
future correspondence and communications" to her "relating to the
parties represented by this office in this matter."
On November 9, 2011, McCray mailed a
package to Mitchell containing summons and notice and acknowledgment of receipt
forms. The forms were not signed or
returned to McCray. McCray, however,
filed the certificates of service on the individual defendants as well as
unsigned notice and acknowledgment of receipt forms. In response, the individual defendants filed
a motion to quash service of summons and to vacate the certificates of service
filed with the court. On February 3, 2012, the court granted
the motion, finding McCray had not filed proof that the written acknowledgments
of receipt of summons were executed and returned and, therefore, service was
not effective.
On February
7, 2012, McCray filed a request for entry of default against the individual
defendants along with a declaration stating he had "personally served [the
individual defendants] through their attorney of record with a copy of the
Summons, Complaint and Statement of Damages because these defendants had
refused to waive service of Summons," and proofs of service of summons
indicating the summons and complaint were personally served by delivering
copies of them to Steven A. Boehmer, a partner in Mitchell's law firm, on
December 28, 2011.
The clerk
entered default against the individual defendants. The individual defendants contend the default
was entered on October 10, 2012. The court's register of actions, however,
shows default was entered as to the individual defendants on February 7, 2012. On October
22, 2012, the individual defendants filed an
vacating the clerk's entry of default and quashing the service of summons. On October
30, 2012, the court vacated the entry of default against the
individual defendants, quashed service of the amended complaint and struck the
proofs of service filed on February 7,
2012, from the docket. The October 30, 2012, order stated after
the court's review of the file it found the individual defendants "were
not properly served . . . ."
DISCUSSION
As an
initial matter, the portion of the October
30, 2012, order vacating the clerk's entry of default is not appealable. (Veliscescu
v. Pauna (1991) 231 Cal.App.3d 1521, 1522.)
McCray's appeal from that aspect of the order is dismissed. The court's order quashing service, however,
is appealable. (Code Civ. Proc., §
904.1, subd. (a)(3).) We also deny
McCray's requests to take judicial notice of court records in another case
against him and this court's opinion dismissing his earlier appeal in this case
(D061921). These documents have no
relevance to the issues in this appeal.
"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.
([Code Civ. Proc.,] § 410.50.)"
(Dill v. Berquist Construction Co.
(1994) 24 Cal.App.4th 1426, 1439, fn. omitted.)
"When a defendant challenges [a court's personal jurisdiction over
him or her] by bringing a motion to quash, the burden is on the plaintiff to
prove the existence of jurisdiction by proving, inter alia, the facts requisite
to an effective service." (
required. In deciding whether service
was valid, the statutory provisions
regarding service of process ' " '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 pp. 1436-1437.)
Code of
Civil Procedure section 416.90, contained within the article describing the
"Persons Upon Whom Summons May Be Served," 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." (Code of Civ. Proc., § 416.90, italics
added.) " '. . . If
process is delivered to an agent of defendant, such agent must be one who is
authorized by law or by appointment to receive service of
process . . . .' "
(Warner Bros. Records, Inc. v.
Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1017.) Service upon an agent with ostensible
authority is sufficient to acquire jurisdiction. (Id.
at p. 1018.)
"The
existence of an agency relationship is usually a question of fact, unless the
evidence is susceptible of but a single inference." (Violette
v. Shoup (1993) 16 Cal.App.4th 611, 619.)
" 'To establish ostensible authority in an agent, it must be shown
the principal, intentionally or by want of ordinary care has caused or allowed
a third person to believe the agent possesses such authority.' " (Gulf
Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 439; see also Civ.
Code, § 2317.) " '[W]here the
principal knows that the agent holds himself out as clothed with certain
authority, and remains silent, such conduct on the part of the
principal' " may establish the existence of an agency
relationship. (Gulf Ins. Co., at p.
439.)
Here,
McCray contends personal service on Boehmer, a partner in Mitchell's law firm,
was effective because Mitchell's April 14, 2011, letter explicitly stated her
firm represented the individual defendants in this matter. The individual defendants' ex parte
application to quash service, filed almost 10 months after the documents were
delivered to Boehmer, stated Boehmer was "not the actual or ostensible
agent for service of process. . . ." Mitchell's earlier statement, however, gave
rise to a factual question as to whether such an agency relationship existed at
the time the documents were served on Boehmer.
The individual defendants provide no explanation concerning Mitchell's
April 14 statement. Accordingly, the
order quashing service of summons on the individual defendants must be
reversed. The matter is remanded to the
trial court for a determination of whether McCray's December 28, 2012, service
on the individual defendants by delivery to Boehmer was effective.
DISPOSITION
The order
quashing service of the amended complaint on the individual defendants is
reversed and remanded for a determination of whether the December 28, 2012,
service on Hal Ryan, Marti Emerald, Anthony Young, Todd Gloria, Sherri
Lightner, Jim Cunningham, Jess Van Deventer, Jerry Selby, Jim Janney, Bob
McClellan, Al Ovrom, Jerry Rindone, Ernest Ewin, Ron Roberts, Harry Mathis and Mark
Held via delivery to Boehmer was effective.
The appeal is dismissed as to the order vacating the clerk's entry of
default. Each party shall bear its own
costs on appeal.
McINTYRE,
J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
