Friday, November 15, 2013

Serving the Homeless . . .

Sweeting v. Murat, No. B243034 (D2d4 Nov. 13, 2013)

An apparently homeless pro per sued the operators of a storage facility for the loss of several shipping containers allegedly worth $2.5 million. At some point in the litigation, plaintiff filed a change of address form, listing his address as a “unit” at a Huntington Beach address, which ultimately turned out to be a box at a UPS store. When defendants moved for summary judgment, their proof of service attested that their attorney personally served plaintiff at this address by leaving a copy of the motion for him there. Plaintiff did not timely file an opposition—he ultimately filed something just two days before the calendared hearing. The trial judge exercised his discretion to decline to consider late-filed papers and—having found that defendants met their initial burden under Code of Civil Procedure § 437c(p)(2)—granted the motion as effectively unopposed. Plaintiff appealed, arguing principally that he had never been properly served with the motion.

The court of appeal noted that the personal service statute, Code of Civil Procedure § 1011 creates a “hierarchy of methods for personal service on a party, if delivery is not made directly to the party.” If no particular method of personal service has been specifically provided in the case—as was the case here—service could be effected by delivering the papers to the party’s residence between 8 a.m. and 6 p.m. and leaving them with someone who is at least eighteen years old. The defendants here did so when their attorney delivered the papers to someone at the UPS store the plaintiff listed as his address in the change-of-address form. The fact that the address was just a mailbox at a UPS store did not render the service insufficient. The court noted that some statutes dealing with the service of a summons—such as Code of Civil Procedure § 415.20(a), which provides for so-called “substitute service” at a “usual mailing address”—preclude delivery to a post office box. But even these statutes have been read to mean that only “when the usual mailing address is a United States Postal Service postal box that personal delivery to the mailing address does not constitute personal service; service at a private or commercial post office box is allowed.”


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