TROY v. NISSAN MOTOR COMPANY LTD

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Court of Appeal, Second District, Division 4, California.

Kirk TROY et al., Plaintiffs and Appellants, v. NISSAN MOTOR COMPANY, LTD. et al., Defendants and Respondents.

Civ. 56192.

Decided: February 29, 1980

Law Offices of Kenneth Lee Chotiner and Robert J. Jagiello, Santa Monica, for plaintiffs and appellants. Grace, Neumeyer & Otto, John Carpenter Otto, Richard A. Neumeyer and Ronald J. Skocypec, Los Angeles, for defendants and respondents.

Plaintiffs appeal from an order, made under section 581a of the Code of Civil Procedure, dismissing their action for failure to serve summons and make return within three years after filing of the action. We reverse the order.

I

Plaintiffs filed their action, for personal injuries, against the present respondents and others,1 on June 19, 1975. On June 16, 1978, plaintiffs purportedly served these respondents under the circumstances hereinafter set forth, and return of that service was duly made. Thereafter, and on July 27, 1978, a copy of the summons and complaint were mailed to respondents. Respondents' motions to quash service were filed on July 17, 1978, and were granted on August 2, 1978; notice of that ruling was given on August 7, 1978. Respondents' motion under section 581a was filed on August 10, 1978, and was granted on August 25, 1978; a corrected order of dismissal was filed on September 20, 1978, and notice thereof was given on September 21, 1978. Plaintiffs appealed from the dismissal on November 8, 1978.

Respondents first ask us to dismiss the appeal because, although admittedly timely as to the order of dismissal, it should, as they contend, have been made from the order quashing service, as to which the time ran on August 7, 1978. We deny that request. While, as respondents point out, the order quashing service was appealable (Code Civ.Proc., § 904.1(c)) the cases have dealt with, and reversed, such orders on an appeal from the dismissal order made under section 581a. (Cf. Billings v. Edwards (1979) 91 Cal.App.3d 826, 154 Cal.Rptr. 453.)

II

The returns, insofar as these respondent are concerned, show a personal service on “Carol Dixey, Receptionist.” They indicate on their face, by checking a box, that service was being made under section 415.20 of the Code of Civil Procedure, although page 2 of the returns recite that the summons was served under section 416.10 of that code. The two sections thus referred to read as follows:

“A summons may be served on a corporation by delivering a copy of the summons and of the complaint:

(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105 or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code as in effect on December 31, 1976 with respect to corporations to which they remain applicable);

(b) To the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process;

(c) If the corporation is a bank, to a cashier or assistant cashier or to a person specified in subdivision (a) or (b); or

(d) When authorized by any provision in Section 1701, 2110 or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by such provision.”

“(a) In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.”

We turn to the facts of the case at bench in light of certain principles applicable to similar services: (1) the two sections provide alternative modes of service; service may validly be made under either section (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 145 Cal.Rptr. 814); (2) it is the fact of service that is essential; the return is only evidence of that fact and a defective return may be amended or corrected after the three-year period of section 581a if an original return showing delivery was filed within that period; (M. Lowenstein & Sons, Inc. v. Superior Court, supra); (3) if service is made and return filed within the statutory period, the mailing required by the last sentence of section 415.20 may be made after that date. (Billings v. Edwards (1979) 91 Cal.App.3d 826, 154 Cal.Rptr. 453.)

Applying these principles we conclude: (1) that the return of summons shows, or could have been amended to show, that service was actually made in conformity with both sections; (2) that, since Carol Dixey was, by her own declaration, a person “apparently in charge” of respondents' office, service was effective under section 415.20; (3) that, under the interpretation given by the cases of the term “general manager” in section 416.10, Carol Dixey was a person within the meaning of that term. In Cosper v. Smith & Wesson Arms Co. (1959) 53 Cal.2d 77, 346 P.2d 409 our Supreme Court said (at p. 83, 346 P.2d at p. 413), with reference to a predecessor section to the present section 416.10:

“… In this regard, it has been said that ‘every object of the service is obtained when the agent served is of sufficient character and rank to make it reasonably certain that defendant will be apprised of the service made,’ and by service on such an agent, ‘the requirement of the statute is answered.’ (Eclipse Fuel Eng. Co. v. Superior Court, supra, 148 Cal.App.2d 736, 746, 307 P.2d 739.) Whether in any given case, the person served may properly be regarded as within the concept of the statute depends on the particular facts involved․” Not only does the declaration by the corporate assistant secretary of the respondents not deny receipt of the summonses delivered to Ms. Dixey,2 but it is obvious from the fact that those respondents filed their motions to quash service shortly after July 16th and prior to the mailing, on July 27th, that the copies delivered to Ms. Dixey must have been delivered by her to the corporate officers. The requirement of section 416.10 was, on the record before us, amply met.

The judgment (order of dismissal) is reversed with directions to the trial court to vacate its orders quashing service and to enter a new and different order denying those motions.

FOOTNOTES

1.  The status of the case as to defendants other than the present respondents is not before us on this appeal.

2.  That declaration, executed on July 13th, denies only that service by mail had been made by that date.

KINGLSEY, Acting Presiding Justice.

JEFFERSON and BURKE (Assigned by the Chief Justice of California), JJ., concur.