top of page
Search

An Example of How an Improper Service of Process Leads to Void Default Judgment


The California Court of Appeal recently affirmed a trial court's order setting aside a default judgment in Braugh v. Dow, highlighting the importance of strictly complying with statutory requirements for service of process. In this partition action between an unmarried couple over a jointly owned property, the plaintiff Jane Braugh personally served the summons and complaint on the defendant Roy Dow. Nearly two years later, Dow successfully moved to vacate the default judgment, arguing improper service rendered the judgment void.


Key Takeaways:


  1. Parties to an action cannot serve process on one another. The appellate court emphasized that having an opposing party serve the summons and complaint is strictly prohibited and not a mere technicality. The intent is to discourage fraudulent service by those with an adversarial interest.

  2. Void judgments can be set aside at any time. While defendants generally have six months from entry of judgment to move to vacate, this time limit does not apply if the judgment is void on its face. Here, the proof of service signed by Braugh revealed her status as a party, rendering the default judgment facially void.

  3. Defective service deprives the court of personal jurisdiction. Compliance with statutory service procedures is essential to establish personal jurisdiction over the defendant. A default judgment entered against a defendant not properly served is void because the court lacks jurisdiction.

  4. Actual notice does not cure improper service. Braugh argued that Dow received "actual notice" despite her non-compliant service. However, the court rejected this "substantial compliance" argument, finding actual notice irrelevant when the manner of service failed to comport with statutory requirements.

  5. Defendants need not respond to defective service. The appellate court confirmed that Dow was under no obligation to act upon the improperly served summons and complaint. Plaintiffs must execute service as statutorily prescribed to compel the defendant's participation.


This case serves as a cautionary tale for parties attempting to personally serve process on their adversaries and a helpful reminder that courts may set aside void judgments well after entry. Litigants must scrupulously adhere to service of process rules to avoid jurisdictional challenges that could undo judgments down the line. Consulting an attorney experienced in civil procedure is advised to ensure proper service and safeguard the enforceability of any resulting judgment.

4 views0 comments

Kommentare


bottom of page