Jameson v. Desta, D047824 (Cal. App. 7/2/2007), D047824

• Decision Date: 02 July 2007
• Docket Number: D047824
• Court: California Court of Appeals Court of Appeals
• Parties: BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.

Page 1

BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.

D047824

Court of Appeals of California, Fourth Appellate District, Division One

July 2, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of San Diego County, No. GIS9465, William S. Cannon, Luis R. Vargas, Judges. Reversed and remanded.

AARON, J.

I. INTRODUCTION

In April 2002, Barry S. Jameson filed a complaint against Dr. Tadesse Desta, alleging numerous claims stemming from Dr. Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated at the Richard J. Donovan Correctional Facility. In September 2005, the trial court granted Dr. Desta's motion to dismiss the case for lack of prosecution. The trial court granted the motion to dismiss on the ground that Jameson "was not diligent in effecting service on Dr. Desta." Code of Civil Procedure section 583.420, subdivision (a)¹ grants a trial court discretion to dismiss an action if service has not been effected within two years of the filing of the complaint. On October 11, the court entered judgment in favor of Dr. Desta.²

On appeal, Jameson contends that Dr. Desta's signing of an April 19, 2002 notice and acknowledgement of service establishes that Desta was timely served by mail, pursuant to section 415.30. Jameson argues that the trial court was thus not authorized to dismiss the action pursuant to section 583.420, subdivision (a). We agree that Jameson served Dr. Desta pursuant to section 415.30 no later than June 26, 2002. Accordingly, the trial court erred in dismissing the action for lack of diligent service.³

II. FACTUAL AND PROCEDURAL BACKGROUND

Jameson filed the complaint⁴ in this case on April 2, 2002. He alleged eight causes of action, including breach of fiduciary duty, professional negligence, general negligence, failure to train, battery, violation of civil rights, intentional infliction of emotional distress, and violation of due process against a number of defendants, including Dr. Desta and officials of the California Department of Corrections and Rehabilitation (Department).⁵ In the complaint, Jameson alleged that Dr. Desta, working on behalf of the Department, negligently prescribed the drug Interferon for Jameson. Jameson further alleged that the drug had caused him to suffer serious physical injuries, including irreversible damage to his eyesight.

On June 26, 2002, Jameson filed a notice of acknowledgement of receipt that was signed by Dr. Desta.⁶ The notice and acknowledgement of receipt is printed on Judicial Council of California form 982(a)(4). The caption of the form contains the proper case name, court name, and address of the court. However, the caption incorrectly lists a case number from a prior action that was dismissed without prejudice in September 2000 for failure to exhaust administrative remedies (Jameson v. Terhune (Super. Ct. San Diego County, 2000, No. GIS 3085 (GIS 3085)). Dr. Desta was not a named defendant in the prior action.

The notice and acknowledgement is addressed to "Dr. Tadesse Desta," and states, "This su[m]mons and other document(s) indicated below are being served pursuant to Section 415.30 of the California Code of Civil Procedure." The notice and acknowledgement also states, "Section 415.30 provides that this summons and other documents(s) are deemed served on the date you sign the Acknowledgement of Receipt below, if you return this form to me." The notice and acknowledgement is dated "April 19, 2002," and was sent to Dr. Desta by a person named Rennie Norelli.

The lower third of the notice and acknowledgement of receipt states: "ACKNOWLEDGEMENT OF RECEIPT. [¶] This acknowledges receipt of: (To be completed by sender before mailing)." On the following line is the number "1," with a box next to the words, "A copy of the summons and of the complaint." That box has a check mark in it. Dr. Desta signed the acknowledgment portion of the notice and acknowledgement on a line marked, "Signature of person acknowledging receipt . . . ." However, Dr. Desta failed to indicate the date or dates on which he received and signed the notice and acknowledgement, as is requested on the form.

On June 20, 2002, Jameson served Dr. Desta with a statement of damages and a notice of acknowledgement of receipt by mail. The statement of damages contained the correct case number. Dr. Desta signed and returned the acknowledge of receipt, but did not date it. Jameson filed the acknowledgement of the receipt of the statement of damages in July 2002.

In November 2004,⁷ Jameson filed a declaration of lost summons after service. In his declaration, Jameson stated that there was no "original summons" in the case because the matter had initially been filed as a petition for habeas corpus.⁸ Jameson further stated that Dr. Desta had signed an acknowledgment of the action, citing the April 19, 2002 and the June 20, 2002 acknowledgments. For reasons that are not clear from the record, the clerk cancelled the file stamp on this declaration.

After several refusals by the court clerk to enter a default judgment against Dr. Desta, on February 14, 2005, Jameson again served Dr. Desta, via substitute service, pursuant to section 415.20. In May 2005, Jameson filed a proof of service for the February 2005 service. The proof of service included a declaration from a person named Manuel M. Soares attesting that he effected substitute service of Dr. Desta on February 14. Filed with the declaration were, among other documents, a summons and complaint. In May 2005, Dr. Desta filed a demurrer to each of the eight causes of action in the complaint. On July 19, 2005, the trial court sustained Dr. Desta's demurrer without leave to amend as to the third, fourth, fifth, sixth, seventh, and eighth causes of action. The trial court overruled Dr. Desta's demurrer as to the first cause of action for breach of fiduciary duty, and as to the second cause of action for professional negligence.

On August 2, 2005, Dr. Desta filed a motion to dismiss the case based on delay in prosecution. In his brief in support of his motion, Dr. Desta argued:

"[Jameson] filed the Complaint on April 2, 2002. Thereafter, he attempted to file a proof of service for a Notice of Acknowledgement of Receipt of the Statement of Damages which was signed sometime in June 2002 by Dr Desta. Plaintiff never served Dr. Desta with the summons and complaint. However, plaintiff attempted to enter a default against Dr. Desta on numerous occasions and on each occasion it has been rejected by the court clerk."

Dr. Desta did not contest that Jameson effectively served Dr. Desta via substitute service in February 2005, but argued that Jameson's failure to serve Dr. Desta before February 2005 constituted inexcusable delay justifying dismissal of the action. Dr. Desta argued, "[Jameson] did not effectuate service of the summons and complaint until two years and ten in [sic] a half months after the Complaint was filed."

Jameson filed an opposition to the motion to dismiss in which he argued, among other contentions, that he had mailed Dr. Desta a copy of the complaint and that Dr. Desta had signed a notice and acknowledgment of receipt in June 2002. In his response, Dr. Desta argued, "Plaintiff on June 20, 2002, had an individual by the name of Rennie Norelli serve Dr. Desta with a Statement of Damages only, he was not served with the Summons or Complaint."

On September 16, 2005, the trial court granted Dr. Desta's motion to dismiss on the ground that Jameson "was not diligent in effecting service on Dr. Desta." With respect to Jameson's attempts to serve Dr. Desta, the trial court stated:

"[Jameson] faults the court for repeatedly refusing to enter a default against Dr. Desta, claiming the court should have accepted a Notice of Acknowledgment and Receipt (NAR) that was purportedly signed by Dr. Desta but not dated. However, the Notice of Acknowledgement and Receipt was for a statement of damages only, not the summons and complaint. Moreover, [Jameson] submitted a Declaration of Lost Summons After Service which stated there was no summons. [Jameson] presumably knew what a summons was since he submitted a copy of a [notice of acknowledgment of receipt] for a summons and complaint for Dr. Desta from case No. GIS 3085."

Jameson filed a motion to vacate or reconsider the trial court's order. The court entered judgment in favor of Dr. Desta, and denied Jameson's motion to vacate or reconsider. Jameson appeals.

III. DISCUSSION

Jameson claims that the trial court erred in dismissing his case for lack of prosecution on the ground that he failed to timely serve Dr. Desta. Jameson claims that he adequately served Dr. Desta pursuant to section 415.30 within a few months of filing the action.

A. Standard of review

The facts regarding Jameson's service of Dr. Desta on April 19, 2002 are undisputed. Whether such service constituted effective service pursuant to section 415.30 presents a question of law. We review questions of law de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [noting that questions of law not involving disputed facts are reviewed de novo].)

B. Governing Law

1. The requirement and manner of service of process

"'A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action' [citation] . . . ." (Mannesmann Demag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122-1123.) "A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served." (§ 415.10.) A summons may also be served via "substitute service" (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544), by leaving a copy of the summons and complaint at the defendant's office and by thereafter mailing a copy of the summons and complaint to the defendant at the defendant's office in accordance with the procedures outlined in section 415.20.

In addition to these methods of...