Service Done Self Is Not Service Done Right

Braugh v. Dow, No. B311859 (D2d8 Jul. 3, 2023)

In this case, the plaintiff, who is an attorney, got a default judgment. Service was based on her handing the complaint packet to the defendant. Although her proof of service recited the fact that she was not a party to the action, it made clear that she was the one who did the handing. Years later, the defendant found out about the judgment and moved to vacate under Code of Civil Procedure § 473(d). The trial court granted the motion.

Under § 473(d), a facially void judgment can be vacated without limitation to time. That includes a judgment that is void for lack of valid service of process. And in the default context, “facially” is a bit of a term of art. Because it includes not just the judgment itself, but the whole judgment roll, which also includes the “affidavit or proof of service; the complaint; [and] the request for entry of default.” See § 670(a). Here, the proof of service says that the plaintiff herself personally served the complaint on the defendant. That violated § 414.10, which says “[a] summons may be served by any person who is at least 18 years of age and not a party to the action.” 

Plaintiff tries to argue that she substantially complied because defendant had actual notice. Thus, she says, the unlimited time under§ 473(d)’s facially void rule should not apply. Instead, defendant should have availed himself of § 473(b) which permits vacation of a judgment based on mistake or excusable neglect. And because § 473(b) has time limits, says plaintiff, defendant’s motion to vacate was too late and should have been denied.

The Court of Appeal disagrees. Because they create the fundamental jurisdiction of the court, to justify a default judgment, the service of process statutes must be strictly complied with. (At least until they become a non-issue after a defendant makes a general appearance that waives defects in service.) If the POS admits facts showing non-compliance with the rules, a default cannot be premised on that service. And as such, it is void, forever.

Affirmed.