Filed 2/20/14
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



ARIEL V. RAMOS,                                    D063740

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. 37-2011-00055649-
                                                   CU-OR-NC)
HOMEWARD RESIDENTIAL, INC.,

        Defendant and Respondent.



        APPEAL from an order of the Superior Court of San Diego County, Robert P.

Dahlquist, Judge. Affirmed.



        Southland Law Center and Rick L. Raynsford for Plaintiff and Appellant.

        Wright, Finlay & Zak, T. Robert Finlay and Charles C. McKenna for Defendant

and Respondent.

        Our Code of Civil Procedure provides a number of ways to serve process on a

corporation doing business in the state. The most common method is by service on the

corporation's designated agent for service of process. (Code Civ. Proc.,1 § 416.10,


1       All further statutory references are to the Code of Civil Procedure.
subd. (a).) Otherwise, a corporation may be served by personally delivering a summons

and complaint to those corporate officers, managers and employees identified in section

416.10, subdivision (b), or by delivering process to someone in charge of the office of

one of the individuals identified in section 416.10, subdivision (b) and then mailing the

individual a copy of the summons and complaint. (§ 415.20.)

       Here, the plaintiff used none of the methods prescribed in the Code of Civil

Procedure for service of process on a corporation. Rather, the plaintiff simply left a

summons and complaint with someone who was in charge of a branch office of the

defendant corporation and then mailed the corporation, rather than any individual officer

or manager, a copy of the summons and complaint. Although service was defective, the

plaintiff nonetheless obtained a default against the corporation and a $254,000 default

judgment.

       Because service on the corporation was defective, the trial court properly granted

the corporation's motion to set aside the default and default judgment. Accordingly, we

affirm its order doing so.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Well before this litigation was initiated, on December 17, 2007, defendant

American Home Mortgage Servicing, Inc. (AHMSI/Homeward)2 filed a statement with

the Secretary of State's office designating CT Corporation System (CT) as its agent for

2       On May 29, 2012, American Home Mortgage Servicing, Inc. changed its name to
Homeward Residential, Inc. Because in the record and briefs the corporation is referred
to alternatively as AHMSI and Homeward, for the sake of clarity we will refer to the
corporation as AHMSI/Homeward.
                                             2
service of process. The designation stated that CT's address is 818 W. Seventh Street,

Los Angeles, CA 90017.

       On June 23, 2011, plaintiff Ariel V. Ramos filed a complaint against

AHMSI/Homeward that alleged a number of causes of action related to the foreclosure of

a deed of trust on Ramos's home.

       A process server retained by Ramos attempted to serve AHMSI/Homeward at an

office the corporation operated in Irvine. In attempting to effect service on

AHMSI/Homeward, Ramos's process server asked to speak to whomever was in charge

of the Irvine office. A woman responded to his request and identified herself as being in

charge of the office. The process server handed the woman the summons and complaint,

and she advised the process server that she could not accept the documents. The process

server was unable to obtain the name of the woman to whom he delivered the summons

and complaint.

       Later, Ramos's process server mailed a copy of the summons and complaint to

AHMSI/Homeward at the Irvine address. However, the copy was not addressed to any

officer or named individual but instead was simply sent to AHMSI/Homeward.

       On July 21, 2011, Ramos's counsel received in the mail the summons and

complaint that had been served at the Irvine address. Attached to the summons and

complaint, on a sheet of paper with AHMSI/Homeward's letterhead, was an unsigned

message which stated: "Please send to our registered agent at: [¶] CT Corporation [¶]

350 North Saint Paul Street [¶] Dallas, Texas 75201 [¶] 214-979-1172."


                                             3
      On August 18, 2011, and again on September 26, 2011, Ramos's counsel sent

electronic facsimile letters to AHMSI/Homeward's legal department stating that Ramos

had filed a complaint against AHMSI/Homeward, that AHMSI/Homeward had not

responded and that Ramos had requested entry of its default.

      Based on the delivery to AHMSI/Homeward's Irvine office, on March 23, 2012,

AHMSI/Homeward's default was entered.

      On July 3, 2012, Ramos obtained a $254,155 default judgment against

AHMSI/Homeward.

      On November 27, 2012, Ramos executed a notice of levy on a bank account

owned by AHMSI/Homeward. On November 30, 2012, the bank notified

AHMSI/Homeward of the levy of execution.

      AHMSI/Homeward filed its motion to set aside the default and default judgment

on January 14, 2013. Ramos opposed AHMSI/Homeward's motion on the grounds he

had properly served the corporation and that, in any event, any defect in service was

merely technical and did not deprive AHMSI/Homeward of actual notice of the action.

Ramos relied upon the declaration of his counsel who, among other matters, stated that

AHMSI/Homeward had not provided the Secretary of State's office with an agent for

service of process and that he had sent AHMSI/Homeward notice of the action.

      On February 14, 2013, while AHMSI/Homeward's motion was pending, the

Orange County Sheriff's Department disbursed to Ramos's counsel the $254,190 the




                                            4
sheriff had obtained from AHMSI/Homeward's bank account.3

       On March 22, 2013, the trial court granted AHMSI/Homeward's motion to set

aside the default and default judgment. The trial court found that service on

AHMSI/Homeward was defective and that, in any event, AHMSI/Homeward was entitled

to discretionary relief from the default and default judgment. The trial court also ordered

Ramos to return to AHMSI/Homeward the funds that had been disbursed to him and his

attorney.4

       Ramos filed a timely notice of appeal from the judge's order setting aside the

default and default judgment.

                                              I

       Where, as here, a motion to vacate is made more than six months after entry of a

judgment, a trial court may grant a motion set aside that judgment as void only if the

judgment is void on its face. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th

1426, 1441; § 473, subd. (d).) "'A judgment or order is said to be void on its face when

the invalidity is apparent upon an inspection of the judgment-roll'. [Citation.]" (Dill v.



3      In later discovery conducted by AHMSI/Homeward, Ramos's counsel disclosed he
transferred one-half of the proceeds to Ramos and kept one-half for himself. Counsel
further disclosed that he had used the funds he obtained from AHMSI to, among other
things, pay an outstanding debt to the Internal Revenue Service, pay bonuses to
independent contractors who worked with his law firm, and pay other business and
personal expenses. Ramos returned to AHMSI/Homeward $70,000 of the $127,000 he
had received from his lawyer and stated that he had used the remaining funds to pay
personal expenses.

4      See footnote 3, ante.
                                             5
Berquist Construction Co., supra, at p. 1441.)

       When a judgment by default has been entered, the judgment-roll is limited to the:

summons, proof of service of the summons, complaint, request for entry of default, copy

of the judgment, notice of any ruling overruling a demurrer interposed by the defendant

and proof of service thereof, and, if service was by publication, affidavit for publication

and order directing it. (§ 670, subd. (a).) Because any defect in service must appear on

the face of the judgment-roll as delimited by the documents specified in section 670,

subdivision (a), our review of a trial court's order finding such a facial defect is of

necessity de novo. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.)

       However, where a plaintiff has contested a motion to vacate a default judgment by

way of affidavits or other evidence that goes beyond the judgment-roll as set forth in

section 670, subdivision (a), of necessity our review goes beyond the judgment-roll.

(See, e.g., Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at 1441 [defect in

service that appears on face of judgment-roll shifts "evidentiary burden" to plaintiff].) In

determining any issues raised by such evidentiary matters, our review is governed by the

familiar abuse of discretion standard. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)

That standard requires we defer to factual determinations made by the trial court when

the evidence is in conflict, whether the evidence consists of oral testimony or

declarations. (Ibid.; Goya v. P.E.R.U Enterprises (1978) 87 Cal.App.3d 886, 891.)

       Thus, here, we review the trial court's finding of a facial defect in service de novo.

However, the trial court's implied rulings rejecting Ramos's attempt to show substantial


                                               6
compliance and its finding that, in any event, ASHMI/Homeward is entitled to equitable

relief from the default and default judgment, were made on the basis of the parties'

conflicting declarations. Accordingly, we review those rulings for abuse of discretion.

(See Shamblin v. Brattain, supra, 44 Cal.3d at p. 479; Rappleyea v. Campbell (1994) 8

Cal.4th 975, 981 [equitable relief from judgment reviewed for abuse of discretion].)5

                                              II

       The face of the judgment-roll here and, in particular, the proof of service Ramos

relies upon, fails on its face to show that AHMSI/Homeward was properly served with

the summons and complaint.

       By its terms, section 416.10 permits service on a corporation that is not a bank by

way of: service on an individual or entity designated as an agent for service of process

(§ 416.10, subd. (a)); service on one of the 11 officers or managers of the corporation

specified in section 416.10, subdivision (b); service on a person authorized by the

corporation to receive service (§ 416.10, subd. (c)); or service in a manner authorized by

the Corporations Code (§ 416.10, subd. (d)). In turn, section 415.20 permits substituted

service on a person specified in section 416.10 by leaving the summons and complaint

"in his or her office . . . with the person who is apparently in charge thereof." (§ 415.20,

5      We recognize that in Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at page
496, the court stated: "We review de novo a trial court's determination that a judgment is
void." This statement is somewhat overly broad. Trial court determinations based on
review of the face of the judgment-roll set forth in section 670, subdivision (a) are subject
to de novo review; however, we do not believe de novo review applies to other trial court
determinations made on conflicting evidence outside the face of the judgment-roll
specified in section 670, subdivision (a). (See Shamblin v. Brattain, supra, 44 Cal.3d at
p. 479; Goya v. P.E.R.U. Enterprises, supra, 87 Cal.App.3d at p. 891.)
                                              7
subd. (a), italics added.)

       While section 415.20, subdivision (a) permits substituted service on "the person to

be served as specified in Section 416.10," where the proof of service fails to identify any

such person, the proof of service is defective. As the court in Dill v. Berquist

Construction Co., supra, 24 Cal.App.4th at pages 1435-1436 stated with respect

analogous provisions of section 415.40: "[T]he distinction between a 'party' and a 'person

to be served' on behalf of that party . . . is central to the statutory scheme governing

service of process. 'The words "person to be served" are words of precision, used

throughout the act, intended to refer to the "individual" to be served, and not to the

"party." For example, reference is to the vice president of defendant corporation who is

being served on behalf of the corporate defendant, and not to the corporate defendant.'

[Citation.] Since a corporate defendant can only be served through service on some

individual person, the person to be served is always different from the corporation."

(Italics added & fn. omitted.)

       Ramos does not assert that service was on the designated agent for service of

process or on a person authorized to receive service, and he does not contend that service

was accomplished in a manner authorized by the Corporations Code. More importantly,

Ramos's proof of services does not identify any of the 11 other persons specified in

section 416.10, subdivision (b)—officers or managers of the corporation—as the person

served. Indeed, no individual is identified on the proof of service; rather, the only person

identified on the proof of service is AHMSI/Homeward itself. The proof of service


                                              8
further states that a copy of the summons and complaint were thereafter mailed, not to

any individual, but to AHMSI/Homeward at its Irvine address. Because the face of

Ramos's proof of service fails to identify any individual specified in section 416.10,

subdivision (b) who was served on behalf of the corporation, on its face, the proof of

service and, hence, the judgment-roll, show that the judgment is void for lack of proper

service. (See Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at pp. 1436,

1441.)

                                               III

         The facial defect in the judgment-roll is not the end of our inquiry. Because, as in

Dill v. Berquist Construction Co., "the proofs of service demonstrate that the copies of

the summons were addressed solely to the corporations, rather than to any of the requisite

persons to be served," AHMSI/Homeward was "not required to present any evidence in

order to establish the invalidity of the service and the resulting lack of personal

jurisdiction." (Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1441, fn

omitted.) Thus, the burden then fell on Ramos to show that, notwithstanding the facial

defect in service, service nonetheless substantially complied with the requirements of the

Code of Civil Procedure. (Id. at p. 1442.)

         It is axiomatic that strict compliance with the code's provisions for service of

process is not required. (Pasadena Medi-Center Associates v. Superior Court (1973) 9

Cal.3d 773, 778; Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1436;

Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1391.) "Although some decisions


                                               9
under pre-1969 statutes required strict and exact compliance with the statutory

requirements [citation], the provisions of the new law, according to its draftsmen, 'are to

be liberally construed. . . . As stated in the Nov. 25, 1968, Report of the Judicial

Council's Special Committee on Jurisdiction, pp. 14-15: "The provisions of this chapter

should be liberally construed to effectuate service and uphold the jurisdiction of the court

if actual notice has been received by the defendant, and in the last analysis the question

of service should be resolved by considering each situation from a practical

standpoint. . . ." The liberal construction rule, it is anticipated, will eliminate

unnecessary, time-consuming, and costly disputes over legal technicalities, without

prejudicing the right of defendants to proper notice of court proceedings.' [Citation.]"

(Pasadena Medi-Center Associates v. Superior Court, supra, at p. 778.) "Thus,

substantial compliance is sufficient." (Dill v. Berquist Construction Co., supra, at

p. 1437.)

       In general, substantial compliance with the code occurs when, although not

properly identified in a proof of service, the person to be served in fact actually received

the summons. (Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1437; see

also Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39-41.) "[W]hen the defendant is a

corporation, the 'person to be served' is one of the individuals specified in section 416.10.

Therefore, [plaintiff] could be held to have substantially complied with the statute if,

despite his failure to address the mail to one of the persons to be served on behalf of the

defendants, the summons was actually received by one of the persons to be served." (Dill


                                               10
v. Berquist Construction Co., supra, at p. 1437.) However, mere receipt of the summons

by an unknown employee of the corporation who is not a person specified in section

416.10 does not necessarily establish substantial compliance. (Id. at pp. 1438-1439.)

Evidence that shows the name of the person who received the summons and complaint as

well as the person's title or capacity is required by statute (§ 417.10) and, without it, a

trial court need not infer that a person specified in section 416.10 actually received the

summons and complaint.

       Here, Ramos did not provide the trial court with any evidence identifying the

person to whom the summons and complaint was delivered in Irvine or other evidence

from which it might be inferred a person specified in section 416.10 actually received the

documents. According to a declaration submitted by AHSMI/Homeward, none of the

officers or managers specified in section 416.10, subdivision (b) are located at its Irvine

office and no employee there is authorized to receive process. AHSMI/Homeward's

declaration further states that until it received notice that its bank account had been

levied, it had no notice of Ramos's complaint. Given this record, which does not show

that anyone specified in section 416.10 or otherwise authorized to receive service had

actual notice of the summons and complaint, the trial court could properly conclude that

Ramos failed to show he substantially complied with sections 416.10 and 415.20.

       In sum, the record here shows both that on its face the judgment is void for lack of

proper service and that Ramos did not otherwise show substantial compliance with the

requirements for service on a corporation. Thus, the trial court did not err in vacating the


                                              11
default and default judgment as void.

                                               IV

       As we have noted, in the alternative, the trial court found that AHMSI/Homeward

was entitled to discretionary relief from the judgment under section 473.5, subdivision

(a), which permits relief from a default judgment if "service of a summons has not

resulted in actual notice to a party in time to defend the action . . . ." Contrary to Ramos's

argument, the trial court did not abuse its discretion in providing AHMSI/Homeward

with relief under section 473.5.

       In reviewing the court's grant of discretionary relief from default, we note: "It is

the policy of the law to favor, whenever possible, a hearing on the merits. Appellate

courts are much more disposed to affirm an order when the result is to compel a trial on

the merits than when the default judgment is allowed to stand. [Citation.] Therefore,

when a party in default moves promptly to seek relief, very slight evidence is required to

justify a trial court's order setting aside a default. [Citation.] In the present case,

[defendant] promptly moved to have the default judgment set aside once he learned of it.

The trial court's order granting relief was within its sound discretion and, in the absence

of a clear showing of abuse of discretion, should not be disturbed. [Citations.]"

(Shamblin v. Brattain, supra, 44 Cal.3d at p. 478.) "'"Even in a case where the showing

. . . is not strong, or where there is any doubt as to setting aside of a default, such doubt

should be resolved in favor of the application."'" (Rosenthal v. Garner (1983) 142

Cal.App.3d 891, 898.)


                                               12
       We recognize that relief under section 473.5 is available only where the

defendant's lack of actual notice "was not caused by his or her avoidance of service or

inexcusable neglect." (§ 473.5, subd. (b).) Here, Ramos contends that

AHSMI/Homeward failed to provide the Secretary of State with an agent for service of

process and that it ignored the written and telephonic notice of the action his counsel

provided to various employees of the corporation. Thus, Ramos contends any lack of

actual notice was caused by AHSMI/Homeward's own inexcusable neglect.

       The record does not support Ramos's contention that no agent for service of

process was provided to the Secretary of State. AHSMI/Homeward provided a

declaration and documentation which shows that AHSMI/Homeward provided the

Secretary of State with an agent for service of process in 2007, well before Ramos

initiated this litigation. Thus, on this record, the trial court could conclude that

AHSMI/Homeward acted reasonably in providing California litigants with ready means

of serving process on it.

       With respect to the notice counsel provided to various AHSMI/Homeward

employees, we note that none of them are the persons to be served specified in section

416.10 and there is no proof they were otherwise responsible for responding to litigation

initiated in this state. For its part, AHSMI/Homeward provided a declaration which

asserted that until it received the notice of levy from its bank, it had no notice of Ramos's

complaint. The trial court could readily resolve this conflict in the evidence by

concluding that the employees who were advised of the litigation by Ramos's counsel


                                              13
assumed that, if a complaint had been properly served on the corporation, those

responsible for responding to it would do so. (See Olvera v. Olvera, supra, 232

Cal.App.3d at p. 41 [fragmentary knowledge of action not necessarily actual notice].) At

most, Ramos established excusable neglect on the part of AHSMI/Homeward's

employee's.

       In sum, the trial court could reasonably find that AHSMI/Homeward did not have

actual notice of the summons and complaint and that its ignorance was not the result of

any attempt to avoid service or inexcusable neglect. Thus, we find no abuse of discretion

in the alternative relief the trial court ordered under section 473.5.

                                       DISPOSITION

       The order is affirmed. AHSMI/Homeward to recover its costs of appeal.



                                                                         BENKE, Acting P. J.

WE CONCUR:


HUFFMAN, J.


AARON, J.




                                              14
