Code of Civil Procedure section 437c governs the service and contents of motions for summary judgment and summary adjudication. The times specified for filing and service have been held to be jurisdictional in the sense that lack of proper notice defeats the motion.
Specifically, section 437c provides: “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.”
In Sweeting v. Murat the motion for summary judgment was noticed for hearing on a date 76 days from the date of filing and the proofs of service of the notice of motion and all supporting documents indicated they were personally served by the attorney for defendant at 7071 Warner Avenue, Unit F81, Huntington Beach, California. The motion was set for hearing 33 days before the date set for trial. That address is the address listed on a notice of change of address form that plaintiff filed with the court prior to the service and filing of the motion.
The form included a space for “Mailing address (if different from above),” which plaintiff left blank. The form also stated: “All notices and documents regarding the action should be sent to the above address.” According to plaintiff, the form was filed because plaintiff did not have a home address and his only stable address was at a UPS Store where he rented a post office box. Thus, the only address of record at which plaintiff could be served was the address for plaintiff’s “unit” at the UPS store in Huntington Beach.
The question on appeal was whether service complied with Code of Civil Procedure section 1011, subdivision (b) which provides that personal service on a party to a lawsuit “shall be made in the manner specifically provided in particular cases, or, if no specific provision is made, service may be made by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age.”
Defendant argued, however, that Code of Civil Procedure section 415.20 provides that “[i]n lieu of personal delivery of a copy of the summons and complaint to the person to be served . . . , a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof. . . . When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.” Thus, according to plaintiff, personal service could not be made to a postal box.
Under section 415.20, however, it is only when the usual mailing address is a United States Postal Service postal box that personal delivery to the mailing address does not constitute personal service; service at a private or commercial post office box is allowed. (See, e.g., Ellard v. Conway (2001) 94 Cal.App.4th 540, 545-546.)
In this case of first impression, the court concluded that plaintiff’s notice of change of address directing service of all papers to the listed address constituted a specific provision governing the manner of service, and therefore the delivery of the summary judgment motion to an adult at that address constituted proper personal service.
Michael Daymude consults with clients and accepts cases involving motions for summary judgment and summary adjudication, including those involving disputes over timely service or filing. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael at 818.971.9409.