Schering Corp. v. Superior Court

California Court of Appeal Nov 4, 1975 No. Civ. 46697Published

Before: Thompson

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Holding. The court held that service of process was ineffective because the summons failed to comply with the mandatory notice requirements of Code of Civil Procedure section 412.30, and consequently, the action must be dismissed under section 581a for failure to serve within three years.

Issues

Whether service of summons on a corporation is effective when the summons fails to include the notice required by Code of Civil Procedure section 412.30.
Whether an action must be dismissed under Code of Civil Procedure section 581a when effective service is not achieved within three years of commencement.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The requirements of section 412.30 are mandatory so that service upon a corporation of a purported summons which fails to comply substantially with the section is ineffective.”

“Failure of the summons to state that the person to whom the summons and complaint are delivered is served on behalf of the corporation is not cured by the oral statement of the process server to the person of the fact omitted from the summons.”

“Only effective service of summons and complaint satisfies section 581a.”

Opinion

THOMPSON, J.

The case at bench arises on an alternative writ of mandate issued at the direction of the Supreme Court. It raises the issue of the effectiveness of service of summons to obtain jurisdiction over a foreign corporation doing business in California in light of the of Code of Civil Procedure sections 412.30 and 416.10. Concluding that the record establishes that summons was not served in substantial compliance with section 412.30, we direct that a peremptory writ of mandate issue requiring the trial court to vacate its order denying petitioner’s motion to quash and to enter a new order quashing service. Because the hearing in the trial court resulting in the order to which the peremptory writ is addressed occurred more than three years after the action was commenced, we also direct the trial court to dismiss the lawsuit as to petitioner pursuant to Code of Civil Procedure section 581a.

On April 20, 1972, real party in interest filed her action for negligence and products liability alleging injury from the use of the drugs “Feminone” and “Pro-estrin.” The complaint names as defendants William H. Perloff, M. D., and The Upjohn Company and Interstate Drug Exchange as manufacturers and suppliers of the drugs, but not petitioner. The pleading designates “Doe I” as a physician licensed to practice in the State of California and practicing in Santa Barbara. It designates “Does II and IIP’ as manufacturers and suppliers of the drugs.

Petitioner is a foreign corporation with a warehouse in San Leandro, California, supplying wholesalers with drugs. At all times pertinent, it

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had designated a statutory agent within California for the service of process. Don Baldra acts as “branch manager” of the warehouse for petitioner. George H. Horsley is assistant branch manager in charge of the operation in Baldra’s absence. Horsley is not a corporate officer and his authority is limited primarily to customer service, purchasing, and assisting the foreman in running the warehouse.

On April 16, 1975, four days before the expiration of the statutory period for serving summons (Code Civ. Proc., § 581a), real party in interest attempted service of a summons issued on April 21, 1972, upon petitioner. The summons is in the form approved by the Judicial Council effective July 1970. It designates The.Upjohn Company, Interstate Drug Exchange, William H. Perloff, M. D., and Does I, II, and III as defendants. The “Notice to the Person Served” segment reads:

Schering Corp. v. Superior Court

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THOMPSON, J.

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