Hammer Collections Co. v. Ironsides Computer Corp. (1985)

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[No. B009988. Court of Appeals of California, Second Appellate District, Division Two. September 30, 1985.]

HAMMER COLLECTIONS CO., INC., Plaintiff, Cross-defendant and Respondent, v. IRONSIDES COMPUTER CORPORATION, Defendant; PARTHENON COMPUTERS, INC., Cross-complainant and Appellant.

(Opinion by Roth, P. J., with Compton and Gates, JJ., concurring.)

COUNSEL

Gould, Merritt & Burke, David R. Hagen and Laurence D. Merritt for Cross-complainant and Appellant.

Morton Schein for Plaintiff, Cross-defendant and Respondent.

OPINION

ROTH, P. J.

In its summons and complaint incident to a suit brought on an assigned claim, respondent Hammer Collections Co., Inc. (Hammer) named as defendant "Ironsides Computer Corporation, also known as Parthenon Computers, Inc., a corporation, doing business as Ironsides Computers." After these documents were served on appellant Parthenon Computer, Inc. (Parthenon), Parthenon notified Hammer it did not intend to respond, owing to the fact it had been served "On behalf of Ironsides Computer Corporation" fn. 1 but was not itself that corporation nor known by that name. Hammer thereafter obtained a default judgment and a writ of execution, which it levied upon Parthenon.

When Hammer agreed at Parthenon's request to have the default judgment set aside and to permit Parthenon to plead in the cause on condition of a deposit of money sufficient to secure any judgment Hammer might recover, Parthenon not only answered the complaint but cross-complained as well, charging Hammer with abuse of process. [172 Cal. App. 3d 901]

Graphic Material Omitted

[172 Cal. App. 3d 902]

[1] There is no question that Parthenon was in all respects save one properly served in the action and was fully apprised of the fact and the nature of the pending litigation herein. What is maintained is that, even so, it was not lawfully made a party to the proceedings, such that Hammer, knowing that it had not been, abusively took its default and levied upon its assets, because Parthenon is not, and is not known as, Ironsides Computer Corporation. It is conceded at the same time that Parthenon does business as "Ironsides Computers." fn. 2

In other words, what we are asked to find is that, because there is no entity precisely denominated Ironsides Computer Corporation, the service of summons and complaint upon Parthenon Computers (see fn. 2) was invalid so as to permit the cross-complaint for abuse of process. That request, however, must be denied.

"[W]e set out the legal principles pertaining to the construction of the procedural rules set forth in the Code of Civil Procedure. To start with, we refer to section 4, which underscores that the provisions of the code and all proceedings under it 'are to be liberally construed, with a view to effect its objects and to promote justice.' This century-long view (see Plummer v. Brown (1884) 64 Cal. 429 [1 P. 703]; Clark v. Palmer (1891) 90 Cal. 504 [27 P. 375]; Burns v. Superior Court (1903) 140 Cal. 1 [73 P. 597]; Hancock Oil Co. v. Hopkins (1944) 24 Cal. 2d 497 [150 P.2d 463]; McClearen v. Superior Court (1955) 45 Cal. 2d 852 [291 P.2d 449]) has been recently reaffirmed inPasadena Medi-Center Associates v. Superior Court (1973) 9 Cal. 3d 773, 778 [108 Cal. Rptr. 828, 511 P.2d 1180], wherein interpreting section 416.10, providing for service on a corporation our Supreme Court stated as follows: 'Although some decisions under pre-1969 statutes required strict and exact compliance with the statutory requirements (see 2 Witkin, Cal. Procedure (2d ed. 1970) pp. 1390, 1413-1415), 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." (Li, Attorney's Guide to Cal. [172 Cal. App. 3d 903] Jurisdiction and Process (Cont.Ed.Bar (1970) pp. 57-58.)' (Italics added.)" (Cory v. Crocker National Bank (1981) 123 Cal. App. 3d 665, 669-670 [177 Cal. Rptr. 150]; cf. MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal. App. 3d 555 [200 Cal. Rptr. 286]. See also Billings v. Edwards (1979) 91 Cal. App. 3d 826, 830-831 [154 Cal. Rptr. 453].)

Such was, or should have been, the case here.

The order appealed from is affirmed.

Compton, J., and Gates, J., concurred.

FN 1. So that footnote 1 may appear in a legible configuration, it is reproduced on the following page.

FN 2. So, in its answer to the complaint Parthenon declared "Comes Now Parthenon Computers Inc., (hereinafter 'Parthenon') dba Ironside [sic] Computers, ...."