Tandy Corp. v. Superior Court

Opinion

REGAN, Acting P. J.

Petitioner, a defendant in a wrongful death action, seeks a writ of mandate to compel the grant of its motions to quash service and dismiss it from the action on the basis that service of summons and return thereof had not occurred within three years of the commencement of the action, as required by Code of Civil Procedure section 581a, subdivision (a).

1

Upon examination of the petition, the opposition, and their supporting materials, we conclude that the respondent court erred in denying the motions. Real parties attempted service under section 415.30 by mailing copies of the summons and first amended complaint, and the appropriate notice and acknowledgment of receipt of summons (§ 415.30, subd. (a)), to petitioner’s agent for service in California by certified mail, return receipt requested. However, the acknowledgement was not executed and returned by the agent, hence service was not completed. (§ 415.30, subd. (c).) The postal service return receipt does not suffice as a substitute for an executed acknowledgement of receipt of summons. Similarly, service was not completed under section 415.40 inasmuch as no person outside this state was involved. Nor was service sufficient under section 415.20. In order to obtain in personam jurisdiction by a form of constructive service, there must be strict compliance with the requisite statutory procedures.

(Stamps

v.

Superior Court

(1971) 14 Cal.App.3d 108, 109 [92 Cal.Rptr. 151].) Real parties have not complied with any applicable manner of service prescribed by any California statute.

Subsequent to the respondent court’s order denying petitioner’s motions to quash and dismiss (and subsequent to the expiration of the three-year period), real parties personally served petitioner. This of course was too late under section 581a, subdivision (a), unless the tardiness may be excused pursuant to the limited principles delineated in

[914]

Hocharian

v.

Superior Court