Schering Corp. v. Superior Court

Opinion

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

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:

“ a You are served as an individual defendant.

0 You are served as (or on behalf) of the person sued under- the fictitious name of....................Do.e.I....................................................

□ You are served on behalf of:................................................................

Under: □ C.C.P. § 416.10 (Corporation)

Real party in interest’s process server took the summons to petitioner’s warehouse. He asked who was in charge and was told it was Mr. Baldra and that Baldra was not present. Horsley was identified to the process server as the assistant branch manager then in charge of the premises. The process server delivered conformed copies of the summons and complaint to Horsley, “informing him that he was being served on behalf of Schering Corporation as Doe I, a fictitiously named defendant in said action.” Horsley told the process server that he was not authorized to accept service on behalf of the corporation but that he would forward the documents to its law department at its out-of-state headquarters.

Petitioner moved in the trial court to quash the service of summons, contending that the summons itself does not satisfy the requirements of Code of Civil Procedure section 412.30, and that Horsley is not a person upon whom summons can be served on behalf of the corporation pursuant to Code of Civil Procedure section 416.10. Petitioner moved concurrently to dismiss the action on the ground that there had not been a valid service of summons within the three-year period required by Code of Civil Procedure section 581a.

Sufficiency of Summons

Code of Civil Procedure section 410.50, subdivision (a), states; “Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him . . . .” Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfies the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met. (1 Witkin, Cal. Procedure (2d ed.) Jurisdiction, § 83.)

Code of Civil Procedure section 412.30 states: “In an action against a corporation . . . , the copy of the summons that is served shall contain a notice stating in substance: ‘To the person served: You are hereby served in the within action ... on behalf of (here state the name of the corporation . . .) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party .. ..’ [U] If such notice does not appear on the copy of the summons served, no default may be taken against such corporation . . . .” 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. (Tresway Aero, Inc. v. Superior Court, 5 Cal.3d 431 , 435 [ 96 Cal.Rptr. 571 , 487 P.2d 1211 ]; National Union Fire Ins. Co. v. Superior Court, 247 Cal.App.2d 326 , 329 [ 55 Cal.Rptr. 574 ], both dealing with the substantially identical predecessor statute.) 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. (National Union Fire Ins. Co. v. Superior Court, supra, 247 Cal.App.2d at p. 327.)

Citing Pasadena Medi-Center Associates v. Superior Court, 9 Cal.3d 773 [ 108 Cal.Rptr. 828 , 511 P.2d 1180 ], real party in interest seeks to avoid the impact of Code of Civil Procedure section 412.30, arguing that

Disposition

Let a peremptory writ of mandate issue directing respondent court to vacate its order denying petitioner’s motions to quash service of process and to dismiss the complaint, and to enter a new order quashing service of summons and complaint and dismissing the action as to Schering.

Wood, P. J., and Hanson, J., concurred.