Opinion
KINGSLEY, Acting P. J. Plaintiff appeals from an order under section 581a of the Code of Civil Procedure dismissing her complaint as against respondent defendants for failure to serve and return summons within three years.
I
The complaint was filed and summons issued on October 8, 1974. In November 1974 after a phone conversation with a representative of the defendants’ insurance carrier, plaintiff’s counsel by letter granted an [829]open extension to “answer or otherwise plead.” Plaintiff contends that that stipulation amounted to a general appearance sufficient to bring her within the exception to section 581a. We need not here pass on the conflict between Woodruff v. McDonald’s Restaurants (1977) 75 Cal.App.3d 655 [142 Cal.Rptr. 367], which held that a stipulation must have been between attorneys to have the effect of a general appearance, and Knapp v. Superior Court (1978) 79 Cal.App.3d 799 [145 Cal.Rptr. 154], because the stipulation herein involved would have been ineffective even had it been entered into between attorneys. In Owen v. Niagara Machine & Tool Works (1977) 68 Cal.App.3d 566 [137 Cal.Rptr. 378] we held that, although a stipulation giving time to answer avoided the effect of section 581a, a stipulation to “plead” had no such effect. In that case we said (at pp. 5.69-570): “Whatever plaintiff’s counsel may have thought that defendant’s counsel intended ultimately to do, he had no basis, on an agreement merely to ‘plead’ to assume that defendant desired or intended anything more than time to determine on a course of action. . . .” That language is equally applicable here.
II
When, on September 23, 1977, plaintiff’s counsel became aware that the defendants would contest the efficacy of the stipulation, they commenced efforts to effect service. Being unable to effect personal service, they elected to follow section 415.20 of the Code of Civil Procedure, for service on defendants John and Kenny Edwards. Section 415.20 provides:
“(a) In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.
“(b) If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such [830]person’s dwelling house, usual place of abode, or usual place of business in the presence of a competent member of the household or a person apparently in charge of his office or place of business, at least 18 years of age, who shall be informed of the content thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.”
Copies of the summons and complaint were not mailed until October 5, 1977. Since, under the last sentence of section 415.20, service was not “complete” until ten days after mailing, service was not effected until October 15, 1977 — seven days after the three-year period of section 581a had run. Plaintiff relies on the holding in Ginns v. Shumate (1977) 65 Cal.App.3d 802 [135 Cal.Rptr. 604], that section 415.20 is complied with if the papers are mailed and a return made within the three-year period even though that service is not “complete” until after the period has run. To that contention, defendant’s answer that the returns made on October 6, 1977, were defective in that “they did not state, with specificity, what individual or entity was being served; the method of service; nor that the requirements for mailing had been complied with.” We have examined the returns involved in these two services. They show service on John Edwards and Kenny Edwards; that service was made by leaving a copy with “Bud Roberts, Supervisor”; the address where served; and a declaration of mailing in the exact words of the section. As in Ginns, we can see in those two returns no fatal flaw. We conclude that service on John and Kenny was properly effected within the three-year period.
Ill
Service was purportedly made on the corporate defendants under section 416.10 of the Code of Civil Procedure. That section provides, in pertinent part, as follows: “(b) To the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process.” It is not contended that the service (made on Oct. 4) was untimely nor that return was not made (on Oct. 6, 1977) within the three-year period, nor that Bud Roberts, on whom actual service was made, was not a person on whom such service could be made under the statute. The attack on those services is only that the returns show service on “John Edwards Pest Control” rather than on “Edwards and Son Pest Control,” the actual corporate name of the [831]defendant and on “Biyant Exterminators,” rather than on “Bryant Exterminating Co,” the fictitious name under which that defendant did business.1 We conclude that that objection is without merit. It is admitted that copies of the summons and complaint were actually received by the officers of the corporations involved. The returns used the same names as those set forth in the summons and complaint; the minor variances in nomenclature misled no one. As is said by Mr. Witkin (2 Witkin, Cal. Procedure (2d ed. 1971) Actions, § 595, p. 1405): “The complaint sometimes designates a defendant by a name misspelled or otherwise erroneous (see Pleading, § 363), and this mistake may be carried into the summons. However, if the service is otherwise properly made, and the person served is aware that he is the person named as a defendant in the erroneous manner, jurisdiction is obtained. . . .” (Italics in original.) In any event, the minor variances were of the nature which could be, should have been permitted to be, corrected by an amended return. (Ginns v. Shumate, supra, 65 Cal.App.3d 802, at p. 806.)
The judgment (order of dismissal) is reversed.
Alarcon, J., concurred.
If we understand it, defendants contend that, since investigation would have disclosed that “Bryant Exterminator Co.” was a fictitious name under which a corporation named “J & K Pest Control. Inc.” did business, the summons should have been used that corporate name and service should have been made on it in that name. We reject that contention. The cases discussing the pleading of fictitious names all relate to names, such as Doe I. which clearly are not names under which a defendant does business. But where a person or corporation elects to follow the statutory procedure of section 17900 et seq. of the Business and Professions Code, it has held itself out to those with whom it does business as having adopted that name for all business purposes. Notice to it under that name is all that the law requires.