Baker v. Anderson

• Decision Date: 01 June 1981
• Court: California Court of Appeals Court of Appeals
• Parties: Gerald K. BAKER, Plaintiff and Appellant, v. Robert ANDERSON and Suzanne Anderson, Defendants and Respondents. Civ. 59266.

Page 307

174 Cal.Rptr. 307

119 Cal.App.3d 1000

Gerald K. BAKER, Plaintiff and Appellant, v. Robert ANDERSON and Suzanne Anderson, Defendants and Respondents.

Civ. 59266.

Court of Appeal, Second District, Division 5, California.

June 1, 1981.

Albert J. Garcia, Los Angeles, for plaintiff and appellant.

John L. Fort, Long Beach, for defendants and respondents.

STEPHENS, Associate Justice.

The historical background for the instant controversy involves a different proceeding and though plaintiff, Baker, refers to it at length, reference thereto is unnecessary.

On June 16 and 18, 1979, defendants Anderson were served with a summons and complaint. On June 27, 1979, both defendants were served by mail with a first amended complaint, said complaint having been filed on June 29. Defendants took the papers to an attorney, Goldman, and instructed him to enter defenses. No action was taken by Goldman and defaults were taken on August 1, 1979; motion for default having been filed on July 31, 1979.

Goldman was contacted and he said that he would take care of the matter, but on August 10 Goldman informed defendants that any effort to set aside the defaults would be unavailing; that he would talk to defendants on his return from vacation, which he then took. Due to heart surgery, Mr. Anderson was unable to attend the prove-up hearing on August 20 but obtained the assurance that Goldman's associate would appear. No one appeared for defendants and default judgment was entered.

On November 2, 1979, a notice of motion to set aside default and judgment by default was served by mail on plaintiff. The motion was filed November 9, 1979, and after hearing thereon, on November 30, 1979, the motion was granted on December 3, 1979. The ruling of the court was: "The Court finds the default judgment entered on 9/24/79 in Book 300035, while valid on its face, was void as to both moving parties for the Court did not have jurisdiction of either of them.... (P ) Where defendants had not appeared in this action though validly served, and where time to plead had not expired any amendment to the complaint had to be served in the same manner as service of the of the original complaint, i. e., personal service or appropriate constructive service; not mere service by mail as here." The court also stated that the amendments were not matters of form but of substance.

Section 472 of the Code of Civil Procedure provides: "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or entered in the docket, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of such amendment."

As early as Billings v. Palmer (1905) 2 Cal.App. 432, 433, 83 P. 1077, the rule has been that where service of an amended complaint precedes its filing, it is the date of filing which governs the period until default may be taken. In the instant case default was taken 33 days after the filing of the amended complaint which had previously been served.

Appellants argue that service by mail is a proper means of serving an amended complaint. We need not rest our resolution of this appeal on that issue. Code of Civil Procedure, section 471.5 provides in part: "(a) If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases." ¹

It is imperative that the purpose of the original complaint and issuance of summons be recognized as we analyze the problem before us. (Code of Civ.Proc., § 410.50.) ² Jurisdiction of the court is conferred over the party when that party is served. Appellant's argument is that once jurisdiction over the cause and parties has been established, further notification of actions within that cause (with certain exceptions which are inapplicable here) may be noticed by the substituted service provided for in Code of Civil Procedure, sections 1010-1020.

For the purpose of notice, once the court had acquired jurisdiction of the cause and parties, and there was no need to prefer or require actual physical service where substitute service can achieve the desired result, what is the effect of Code of Civil Procedure sections 1012 and 1013 ³ extending the period within which to act (by five days in the instant case)? Where the party must answer "within 30 days after service" (Code, Civ. Proc., § 471.5), there is clearly an "act" to be done by the adverse party. (Code Civ. Proc., § 1013.) This latter section also provides specified additional days to so act. The rationale is clear; the Legislature recognized that where the service was by mail and "(t)he service is complete at the time of the deposit (in the course of mailing)" there would exist, in fact, a reduction of days to act occasioned by the activities of the mail processes. It established reasonable additional days to compensate for this delayed actual notice, so that the time within which the adverse party had to act would not be diminished. (Montgomery v. Norman (1953) 120 Cal.App.2d 855, 857-858, 262 P.2d 360. See also Highland...