California Court of Appeal Oct 9, 2013 No. D063242Unpublished
Filed 10/9/13 McCray v. Ryan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EMANUEL MCCRAY, D063242
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00097606- CU-PA-CTL) HAL RYAN et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Lorna Alksne,
Judge. Reversed and remanded with directions.
Emanuel McCray, in pro. per., for Plaintiff and Appellant.
McDougal, Love, Eckis, Boehmer & Foley, Steven E. Boehmer and Carrie L. Mitchell
for Defendants and Respondents.
Plaintiff Emanuel McCray appeals an order granting a motion to quash service on
certain defendants. McCray contends the defendants were properly served. Because there is a
factual question concerning whether service was effective, we reverse the order and remand the
matter for a determination of that question.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2010, McCray filed a complaint in San Diego County Superior Court relating
to the injuries he sustained when he fell on a transit bus in November 2009. The complaint
named as defendants the Metropolitan Transit System (MTS), the Metropolitan Transit System
personal jurisdiction over him or her] by bringing a motion to quash, the burden is on the
plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an
effective service." (Id. at pp. 1439-1440.) "However, strict compliance is not required. In
deciding whether service was valid, the statutory provisions regarding service of process
' " 'should be liberally construed to effectuate service and uphold the jurisdiction of the court if
actual notice has been received by the defendant . . . .' " ' " (Id. at pp. 1436-1437.)
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Code of Civil Procedure section 416.90, contained within the article describing the
"Persons Upon Whom Summons May Be Served," provides: "A summons may be served on a
person not otherwise specified in this article by delivering a copy of the summons and of the
complaint to such person or to a person authorized by him to receive service of process."
(Code of Civ. Proc., § 416.90, italics added.) " '. . . If process is delivered to an agent of
defendant, such agent must be one who is authorized by law or by appointment to receive
service of process . . . .' " (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36
Cal.App.3d 1012, 1017.) Service upon an agent with ostensible authority is sufficient to
acquire jurisdiction. (Id. at p. 1018.)
"The existence of an agency relationship is usually a question of fact, unless the
evidence is susceptible of but a single inference." (Violette v. Shoup (1993) 16 Cal.App.4th
611, 619.) " 'To establish ostensible authority in an agent, it must be shown the principal,
intentionally or by want of ordinary care has caused or allowed a third person to believe the
agent possesses such authority.' " (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422,
439; see also Civ. Code, § 2317.) " '[W]here the principal knows that the agent holds himself
out as clothed with certain authority, and remains silent, such conduct on the part of the
principal' " may establish the existence of an agency relationship. (Gulf Ins. Co., at p. 439.)
Here, McCray contends personal service on Boehmer, a partner in Mitchell's law firm,
was effective because Mitchell's April 14, 2011, letter explicitly stated her firm represented the
individual defendants in this matter. The individual defendants' ex parte application to quash
service, filed almost 10 months after the documents were delivered to Boehmer, stated
Boehmer was "not the actual or ostensible agent for service of process. . . ." Mitchell's earlier
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statement, however, gave rise to a factual question as to whether such an agency relationship
existed at the time the documents were served on Boehmer. The individual defendants provide
no explanation concerning Mitchell's April 14 statement. Accordingly, the order quashing
service of summons on the individual defendants must be reversed. The matter is remanded to
the trial court for a determination of whether McCray's December 28, 2012, service on the
individual defendants by delivery to Boehmer was effective.
DISPOSITION
The order quashing service of the amended complaint on the individual defendants is
reversed and remanded for a determination of whether the December 28, 2012, service on Hal
Ryan, Marti Emerald, Anthony Young, Todd Gloria, Sherri Lightner, Jim Cunningham, Jess
Van Deventer, Jerry Selby, Jim Janney, Bob McClellan, Al Ovrom, Jerry Rindone, Ernest
Ewin, Ron Roberts, Harry Mathis and Mark Held via delivery to Boehmer was effective. The
appeal is dismissed as to the order vacating the clerk's entry of default. Each party shall bear
its own costs on appeal.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a factual dispute existed regarding whether an attorney's prior correspondence created an ostensible agency relationship sufficient to validate service of process upon that attorney, necessitating a remand for further findings.
Issues
Whether the trial court erred in quashing service of process where the plaintiff served an attorney who had previously claimed to represent the defendants.
Whether an attorney's statement of representation creates a triable issue of fact regarding ostensible authority to accept service of process.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“Because there is a factual question concerning whether service was effective, we reverse the order and remand the matter for a determination of that question.”
“Service upon an agent with ostensible authority is sufficient to acquire jurisdiction.”
“The existence of an agency relationship is usually a question of fact, unless the evidence is susceptible of but a single inference.”