DISPOSITION The order of the trial court is reversed. Cruz is awarded costs on appeal. FOOTNOTES 1. This fact is taken from Fagors respondents brief and is not found in the record on appeal. 2. Counsel for Fagor apparently indicated during argument on the motion that in 2006, Fagor employed 13 people at its Lyndhurst, New Jersey office. 3. Further statutory references are to the Code of Civil Procedure unless otherwise specified. 4. The trial court also concluded that there was no proof that the summons and complaint were served on Fagors agent for service or process or in compliance with Corporations Code section 2110. We agree with these conclusions; Cruz served Fagor pursuant to sections 415.40 and 416.10 by mailing a copy of the summons and complaint to the president of the corporation. 5. Cruz erroneously identified Barriga as “Chairman of the Board” on the envelope. Fagor does not argue that service was invalid because of this error. Even if Fagor had raised this argument, we would conclude that it is meritless. The statutes require a plaintiff to send a copy of the complaint to the person to be served. For a corporation, the person to be served may include the president of the corporation. Cruz sent the summons and complaint to Barriga, who is the president of the corporation. This satisfies the requirements of the statute. 6. Fagor could have submitted declarations attesting, for example, that Hayes lacked real or apparent authority to accept mail on behalf of the corporation, or evidence that the address to which the summons and complaint were sent was not Fagors address for service of process. 7. There are significant policy reasons for placing the burden of ensuring proper internal document delivery on corporate defendants rather than on plaintiffs. In virtually every situation in which service of process on a foreign corporate defendant is attempted by mail, that defendant could assert lack of service by simply allowing an employee to sign for the document and then claiming that the particular individual to whom the documents were addressed never received the document. This could occur despite the fact that other officers or agents for service of process did, in fact, receive the documents. It would also allow corporate defendants to simply ignore otherwise valid service of process (i.e., service that is reasonably calculated to give the defendant notice of the action and an opportunity to defend itself) by instructing employees who receive the mail to withhold or destroy the documents rather than pass them along to the addressee. 8. The record establishes that Fagor received additional notices regarding the progression of the action during this time period, yet did nothing about them. 9. Although reasonable reliance on a third party to defend generally refers to whether a party has provided a satisfactory excuse for the failure to defend against the action in the first place, the same considerations have been held applicable in “determining whether a delay in moving to set aside a default judgment is excusable.” (Weitz, supra, 63 Cal.2d at pp. 857-858, 48 Cal.Rptr. 620, 409 P.2d 700.) AARON, J. WE CONCUR: HALLER, Acting P.J., and McINTYRE, J. - See more at: caselaw.findlaw/ca-court-of-appeal/1398669.html… blueworldwebmuseum.org/item.php… blueworldwebmuseum.org/item.php?category=Three-masted_Vessels&title=U.S.S._Congress_off_Santa_Cruz_Island%2C_1846&vessel=merrimack&id=140&catid=80
Posted on: Mon, 22 Dec 2014 14:08:14 +0000
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