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Wheatley v. McLaughlin3/27/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Default judgment was entered on respondent David Wheatley's complaint for personal injury in the amount of $261,281 against appellant Megan McLaughlin. Appellant moved to vacate the judgment under Code of Civil Procedure section 473 on the ground that the judgment was void in that it was entered while the case was pending in municipal court where the jurisdictional maximum was $25,000, and a statement of damages had not been personally served as required by section 425.11. The trial court denied the motion to vacate. We conclude that default should not have been entered and reverse the judgment and vacate the default.
FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 1996, respondent filed a complaint for damages for personal injury against appellant and Marc Gurvitz in municipal court. The basis of the complaint was an automobile accident. The automobile was allegedly driven by appellant and owned by Gurvitz. The amount of damage suffered was not specified.
On September 9, 1999, almost three years later, appellant was served via substituted service, that is, the process server left a copy of the complaint with her roommate at 536 Sea Lane, La Jolla, and then mailed a second copy to appellant at that same address.
Two weeks later, on September 23, 1999, acting in pro. per., respondent moved to reclassify or transfer the action. Respondent stated in his moving papers and in a declaration in support thereof that he had already incurred medical expenses of over $16,000 and estimated his past income losses to be a minimum of $250,000. The attached proof of service indicated that the moving papers were mailed to appellant on September 23.
On September 24, 1999, respondent filed the proof of service of summons and complaint on appellant.
On October 21, 1999, slightly more than 40 days after substituted service was accomplished, request for entry of default against appellant was filed and served on appellant by mail at the Sea Lane address. The clerk wrote in the date October 21, 1999, and checked the box indicating that default was not entered as requested, apparently because the proof of service was not yet physically in the file.
On October 27, 1999, an opposition to the motion to reclassify or transfer was filed by counsel purporting to act on behalf of both appellant and Gurvitz. The opposition contended that appellant had not been properly served with the complaint since she had not lived at the Sea Lane address since March 1, 1999, although the only evidence of that was in a hearsay declaration from counsel reporting what appellant had purportedly told him.
On November 1, 1999, appellant, again represented by Gurvitz's counsel, "appear specially" to move to quash service of summons. She stated in a declaration that she moved from the Sea Lane address on or around March 1, 1999, and that she had never seen the summons and complaint served on her there.
On November 2, 1999, respondent's "motion to transfer matter from Municipal Court to Superior Court" was heard and granted.
On November 3, 1999, a commissioner of the municipal court entered a nunc pro tunc order which stated "Reject of Default on 10-29-99 does not correctly reflect [respondent's] request since reject based on the fact that the p.o.s. of the complaint
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