MJS Enterprises, Inc. v. Superior Court

Opinion

THE COURT.

*

Petitioners seek a writ of mandate directing respondent court to grant their motion to set aside a default judgment entered against them in a civil action and motion to quash service of process in that action.

[557]

Facts

Petitioner MJS Enterprises, Inc. (defendant) is a named defendant in a civil action; real parties (plaintiffs) are the plaintiffs in that action.

On August 8, 1983, summons in the action was personally served upon petitioner Michael Saporetti; the proof of service indicates that Saporetti was served on behalf of defendant. However, the summons so served contains a “Notice to the Person Served” stating that he is served as an individual defendant pursuant to Code of Civil Procedure section 416.90 (individual). Nothing in the summons indicates that the process is directed to defendant MJS Enterprises, Inc. Michael Saporetti is an individual defendant in the action; paragraph 5 of the complaint alleges that he is Doe 1.

On September 19, 1983, default judgment was entered against defendant MJS Enterprises, Inc.

On October 21, 1983, defendant moved to set aside the default judgment against it pursuant to Code of Civil Procedure section 473 and to quash service of summons upon it upon the ground, inter alia, that respondent court lacked personal jurisdiction over it because the summons served upon it did not comply with the notice requirements of Code of Civil Procedure section 412.30.

On November 8, 1983, the motions were denied.

Discussion

A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed.

(Lyman

v.

Milton