Nat'l Union Fire Ins. Co. of Pittsburgh v. Superior Court of S.F.

AGEE, J.

Petitioners seek a writ of mandate requiring respondent court, in an action filed therein by real party in interest, to make its order (1) quashing service of summons upon petitioners for failure to comply with the provisions of Code of Civil Procedure section 410 and (2) dismissing said action as to them for failure to effectively serve the summons therein within three years after the commencement of said action, as provided by section 581a of said code.

The named defendants in said action are petitioner National Union Fire Insurance Company of Pittsburgh, a corporation, and three other corporations. The remaining defendants are fictitiously named as “Does One to Sixteen.”

The service under inquiry was made by delivering a copy of the summons and a copy of the complaint to petitioner Bert W. Coyle, a vice-president of petitioner National Union. Coyle was told at the time of such service that he was being served in such capacity and the return of service is so worded.

Real party in interest makes no claim that such service was effective upon Coyle as an individual (see Code Civ. Proc., § 474) and adds that Coyle is not and was never intended to be a party to the action. While the dismissal of an action as to

[328]

one who is not a party seems to be paradoxical, we think it is proper under the circumstances herein.

With respect to the effectiveness of the service upon petitioner National Union, the following provisions of Code of Civil Procedure section 410 are applicable: “When the service [of summons and complaint] is against a corporation, . . . there shall appear on the copy of the summons that is served a notice stating in substance: ‘To the person served: You are hereby served in the within action (or proceeding) on behalf of (here state the name of the corporation . . .) as a person upon whom the summons and a copy of the complaint must be served to effect service against said party under the provisions of [Code of Civil Procedure section 411]. In a ease in which the foregoing provisions of the section require that notice of the capacity in which a person is served must appear on the copy of the summons that is served, the certificate or affidavit of service must recite that such notice appeared on such copy of the summons, if, in fact, it did appear. When service is against a corporation . . . and notice of that fact does not appear on the copy of the summons or a recital of such notification does not appear on the certificate or affidavit of service of process as required by this section, no default may be taken against such corporation. ...”