Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INC042573. Randall Donald White, Judge. Reversed with directions.
Best Best & Krieger, Douglas S. Phillips and Kira L. Klatchko for Plaintiffs and Appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker, Roland C. Coleman, Jr., Aide C. Ontiveros and Robert Cooper for Defendant and Respondent.
McKinster, J.
Robert and Judy Baxter appeal a judgment of dismissal as to defendant Residencial Perla Sociedad Anónima de Capital Variable, dba Vista Playa de Oro, for failure to prosecute, pursuant to Code of Civil Procedure sections 583.210 and 583.250.
“Sociedad anónima de capital variable,” sometimes abbreviated as “S.A. de C.V.,” is the equivalent of “incorporated.” (See [as of Dec. 7, 2009].) We will hereafter refer to Residencial Perla Sociedad Anónima de Capital Variable as Residential Perla, and to its “dba” as Vista Playa de Oro.
All statutory citations refer to the Code of Civil Procedure unless another code is specified.
We conclude that the record shows that service of the summons and complaint and filing of the proof of service were accomplished within the statutory period provided in section 583.210. Consequently, we reverse the judgment and order the complaint reinstated as to this defendant.
The suit remains active against another defendant, Aero California Sociedad Anónima de Capital Variable (hereafter Aero California). The judgment of dismissal as to Residencial Perla is a final judgment as to it, however, and is separately appealable. (See Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.) A third defendant, Hectours, has apparently also been dismissed. It is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of their first amended complaint, Robert and Judy Baxter purchased a vacation package from Aero California, consisting of airfare from Los Angeles to Manzanillo, Mexico, on an Aero California jet, and hotel accommodations at the Vista Playa de Oro hotel in Manzanillo. Accommodations at the hotel were not as advertised, and a dangerous condition on the property caused serious injury to Robert Baxter. The Baxters sued Aero California for breach of contract, negligent misrepresentation and negligence, and sued Vista Playa de Oro for premises liability.
The original complaint, which was filed on April 19, 2004, did not name Residencial Perla. It named Vista Playa de Oro, which it described as a business entity of unknown form. On January 24, 2005, the summons and complaint were delivered to the “attorney-in-fact” for Residencial Perla. (We discuss this delivery in more detail below.)
Aero California’s demurrer to the complaint was sustained with leave to amend. On April 1, 2005, the Baxters filed a first amended complaint. The first amended complaint also did not name Residencial Perla. As we also discuss below, they attempted to serve the first amended complaint on Vista Playa de Oro. Residencial Perla contends that it was not validly served.
On July 18, 2007, Residencial Perla specially appeared to file a motion to dismiss for forum non conveniens or for lack of personal jurisdiction, and concurrently filed a motion to dismiss for failure to prosecute. Aero California joined in the forum non conveniens motion.
On October 2, 2007, the court granted Residencial Perla’s motion to dismiss for failure to prosecute and deemed the forum non conveniens motion moot as to it. A judgment of dismissal as to Residencial Perla, S.A. de C.V., dba Vista Playa de Oro, was entered on November 19, 2007. The Baxters filed a timely notice of appeal.
The motion to dismiss for forum non conveniens was denied as to Aero California on October 29, 2007, and, as noted above, the suit against Aero California remains active.
LEGAL ANALYSIS
THE ORIGINAL SUMMONS AND COMPLAINT WERE TIMELY SERVED ON RESIDENCIAL PERLA
Section 583.210 provides:
“(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.
“(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.”
Section 583.250 provides:
“(a) If service is not made in an action within the time prescribed in this article:
“(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.
“(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.
“(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
In its motion to dismiss for failure to prosecute, Residencial Perla asserted that the Baxters had failed to serve the summons and complaint on it within three years from April 19, 2004, the date of filing of the original complaint. The motion states that on May 2, 2007, the Baxters’ process server attempted service by leaving a copy of the summons and the first amended complaint at the hotel Vista Playa de Oro with an employee who was not authorized to accept service. It also states that the Baxters “have not attempted service of the original Complaint on Residencial Perla Sociedad Anónima de Capital Variable dba Vista Playa de Oro.”
In their opposition to the motion, the Baxters asserted, among other things, that service was properly effected on January 24, 2005, when a process server delivered the original summons and complaint to Gerardo Delgado Pacas, “the general attorney-in-fact for litigations and collections, administrative acts [sic] of the corporation called Residencial Perla Sociedad Anónima de Capital Variable, dba Vista Playa de Oro.” A conformed copy of the proof of service, filed April 8, 2005, was attached as an exhibit to the declaration of the Baxters’ attorney, filed in opposition to both dismissal motions. The process server attested that he delivered the documents to Mr. Delgado as attorney-in-fact for Vista Playa de Oro in conformance with the Hague Service Convention.
The Baxters refer to this individual as “Mr. Pacas,” while Residencial Perla refers to him as “Mr. Delgado.” We adopt the latter’s nomenclature, based on our understanding that it is customary in Mexico to identify individuals by both the paternal (Delgado) and maternal (Pacas) family names but to use only the paternal family name when addressing or referring to the individual using a title such as “mister.” (See [as of Dec. 7, 2009].)
Service of process outside the United States is subject to the terms of an international treaty commonly referred to as “the Hague Service Convention,” if the person to be served resides in a country which is a signatory to the treaty. (§ 413.10, subd. (c); see generally In re Alyssa F. (2003) 112 Cal.App.4th 846, 852 (Alyssa F.).) Mexico is a signatory. (Alyssa F.,at p. 852.)
In its reply to the Baxters’ opposition, Residencial Perla responded to this contention by stating that the Baxters “still have not confirmed that there has been proper service” on it. It later filed a supplemental response which largely duplicated its reply to the opposition. In support of its supplemental response, however, it filed a declaration by Gerardo Delgado Pacas, in which Mr. Delgado stated, among other things, that on January 24, 2005, a process server contacted him to serve papers in connection with this case. He informed the server that “the correct corporate name of the defendant party” is Residencial Perla Sociedad Anónima de Capital Variable, dba Vista Playa de Oro, and that Vista Playa de Oro is “only the commercial name.” Because the documents stated only the name “Vista Playa de Oro” and “had the incorrect corporate name of the defendant party,” Mr. Delgado said he “was not able to accept the documents.”
Mr. Delgado referred to “a representative of the First Secretary of the Mixed Civil and Business Court of Manzanillo, Colima.” This apparently refers to the process server authorized by the Mexican central authority to perform service pursuant to the Hague Service Convention. (See Alyssa F., supra, 112 Cal.App.4th at p. 852.)
When a defendant files a motion to quash service of process or to dismiss for failure to effect service within the statutory period, the burden is on the plaintiff to demonstrate that he or she substantially complied with the service of process statutes in a timely manner. (See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 410-411, 413.) Here, the Baxters’ opposition to the motion made a prima facie showing that the summons and complaint were served in accordance with the Hague Service Convention by delivering the documents to Mr. Delgado, Vista Playa de Oro’s attorney-in-fact. Residencial Perla did not defeat the Baxters’ showing. Its reply did not deny that Mr. Delgado was authorized to accept service on behalf of Residencial Perla. Rather, it asserted only that he refused to accept service, or deemed himself unable to accept service, because the summons and complaint did not name Residencial Perla with its full corporate name. Consequently, we must determine whether failure of the original summons and complaint to name Residencial Perla, S.A. de C.V., dba Vista Playa de Oro, rendered the attempted service on January 24, 2005 ineffective. This is a question of law which we determine de novo.
Section 416.10 provides that a summons may be served on a corporation by delivering a copy of the summons and complaint to, among other individuals, “a person authorized by the corporation to receive service of process.” (§ 416.10, subd. (b).) Residential Perla has never denied that Delgado was such a person.
At oral argument, counsel for Residencial Perla contended that the process server’s declaration is ambiguous as to whether the complaint was actually served along with the summons. He argued that we should remand for an evidentiary hearing. Residencial Perla did not contest service on that basis, however, and we decline to address a new, fact-based theory for the first time on appeal. (See Ward v. Taggart (1959) 51 Cal.2d 736, 742 [party may not assert a new theory for the first time on appeal unless it is a question of law based on facts which are not open to controversy].)
The contention fails. It is undisputed that Residencial Perla does business under the fictitious business name of Vista Playa de Oro. Where a corporation holds itself out to those with whom it does business as having adopted a fictitious business name, “Notice to it under [the fictitious business name] is all that the law requires.” (Billings v. Edwards (1979) 91 Cal.App.3d 826, 831, fn. 1. (Billings); Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348 (Pinkerton’s).) Use of a fictitious business name does not create a separate legal entity; rather, the designation “dba” is merely descriptive of the corporation which does business under the fictitious name. (Pinkerton’s, at pp. 1344-1349.) Because Residencial Perla has elected to do business under the name “Vista Playa de Oro,” service of the summons and complaint naming Vista Playa de Oro on Mr. Delgado, a person authorized to accept service of process on behalf of the corporation, necessarily constituted valid service on the corporation, Mr. Delgado’s opinion to the contrary notwithstanding.
Mr. Delgado’s opinion was not supported by any legal authority that service was not effective under Mexican law because of the misnomer, and Residencial Perla makes no assertion on appeal that even if service in this manner was effective under California law, it was not effective under Mexican law or that it violated any provision of the Hague Service Convention. Consequently, any such assertion is waived.
At oral argument, counsel for Residencial Perla asserted that Fuss v. City of Los Angeles (1958) 162 Cal.App.2d 643 (Fuss) conflicts with Billings, supra, 91 Cal.App.3d 826. We disagree. In Fuss, a summons and complaint was served on a corporation which was not named in the complaint as a defendant. The summons did not indicate that the corporation was being served as a defendant sued under a fictitious name. The court held that service must be quashed because the summons failed to so indicate and because the corporation was not otherwise named in the complaint. (Fuss, at pp. 645-646.) Here, Vista Playa de Oro was named, and service was effected on a person authorized to accept service on behalf of the corporation which does business under that name. The corporation in Fuss had no reason to know, absent an endorsement on the summons, that it was being sued as a “Doe” defendant. Residencial Perla, on the other hand, knows that it does business as Vista Playa de Oro, which was named in the complaint. Moreover, itis undisputed that Residencial Perla received actual notice by means of service of the summons and complaint on Mr. Delgado. The statutes pertaining to service of summons are to 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.”’” (Pasadena Med-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778.) Where “‘“the person served is aware that he is the person named as a defendant in the erroneous manner, jurisdiction is obtained.”’” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 857, quoting Billings, at p. 831.)
As we discuss below, the record does not reveal how, if at all, the summons was endorsed. However, Residencial Perla did not assert below that service was not effected because of the absence of a necessary endorsement.
After the cause was submitted, Residencial Perla called our attention to a newly-decided case, Gilbert v. Haller (Nov. 24, 2009, H033193) ___ Cal.App.4th ___ [2009 Cal.App. Lexis 1893] (Gilbert). It contends that because Gilbert “cites/applies Fuss[, supra, 162 Cal.App.2d 643] without making any... distinction[]” between Doe defendants and a defendant sued under a fictitious business name, it undermines Billings, supra, 91 Cal.App.3d 826. We disagree. Like Fuss, Gilbert involves only a defendant purportedly sued as a Doe defendant; it does not involve a corporation sued under a fictitious business name. Consequently, it has no bearing on the distinction between the two classes of defendants. It does, however, contain dictum which is useful to our analysis.
In Gilbert, the plaintiff sought to join Haller as a Doe defendant, but the summons served on him “omitted the statutory notice that he was served by that fictitious name.” (Gilbert, supra, ___ Cal.App.4th ___ [2009 Cal.App. Lexis 1893, p. *1].) Rather, the summons stated that Haller was being served as an individual defendant, not “‘as the person sued under the fictitious name of (specify).’” (Id. [at p. *6].) Haller did not answer, and the court ultimately entered a default judgment against him. Haller then sought to vacate the judgment as void. (Id. [at p. *8].) The Court of Appeal concluded that the summons neither complied nor substantially complied with the statutory notice requirement. (Id. [at p. *29].) In its discussion of the doctrine of substantial compliance, however, the court made the following observations:
“We question whether service that does not comply with statutory requirements should ever be allowed to stand, over a defendant’s challenge, as the basis for a default judgment. We think a distinction should be drawn between the sufficiency of service to support a default judgment, and the sufficiency of service for other purposes, including to avoid dismissal for want of prosecution. Indeed, such a reading is implied by the statute itself, which provides that where the summons does not contain the statutory notice, ‘no default or default judgment shall be entered.’ (§ 474; see § 412.30 [‘If such notice does not appear... no default may be taken’].) The rule of liberal construction of service rules is designed to ‘“uphold jurisdiction of the court, thus insuring the opportunity for a trial on the merits.”’ [Citations.]... [¶] At worst, where defects in service are asserted in derogation of a default judgment, it may be said that both parties are at fault—the plaintiff for not ensuring that service fully complied with the governing statutes, and the defendant for ignoring whatever service was attempted. The question must therefore be who should bear the burden of the difficulty thus created. Arguably, that question should be resolved against the plaintiff, on the grounds both that his is the first and best opportunity to obviate the difficulty, and that the defendant will otherwise incur a forfeiture. The situation is different, however—it is essentially reversed—when the defendant comes into court acknowledging that he has been sued, but seeking to dismiss the action on the ground that the service, though practically effective, was technically defective. Now it is the plaintiff who is exposed to the forfeiture of his case, and the defendant who seeks to prevent an adjudication on the merits.” (Gilbert, supra, ___ Cal.App.4th ___ [2009 Cal.App. Lexis 1893, pp.*25-*27] [all italics in original with exception of final two sentences].) Here, Residencial Perla does not deny that it received notice that it was being sued under its fictitious business name; it is merely seeking to avoid adjudication of the merits of the Baxters’ claims. Under the circumstances, the undisputed actual notice to the corporation suffices to uphold the jurisdiction of the court. (See Pasadena Med-Center Associates v. Superior Court, supra, 9 Cal.3d at p. 778.)
Residencial Perla also asserts that service on it could not be accomplished because the original complaint made no allegation of the existence of a corporate entity. It relies on Earl W. Schott, Inc. v. Kalar (1993) 20 Cal.App.4th 943 (Schott), which states, “If the existence of corporate structure is not alleged in either the complaint or the summons, it is not possible for an individual to have been served in his or her representative capacity for the unnamed corporation.” (Id. at p. 946.)
The discussion in Schott that Residencial Perla relies on is dictum, and Schott is inapposite in any event. In Schott, the plaintiff sued Gary Kalar, as an individual and “DBA Kalar Construction Co.” The summons and complaint were served by leaving a copy with Ken Amey, the office manager at Kalar Construction Company. The proof of service stated that service was made on Gary Kalar, an individual, and on Kalar Construction Company, “an association or partnership.” It contained no declaration of reasonably diligent efforts to effect personal service prior to using substituted service, nor a notation of the subsequent mailing of a copy of the summons and complaint, as required by section 415.20. After filing an amended proof of service purporting to show substituted service via delivery of the summons and complaint to Ken Amey, office manager for Gary Kalar as an individual, Schott obtained a default judgment against “Gary Kalar, individually and doing business as Kalar Construction.” (Schott, supra, 20 Cal.App.4th at pp. 944-945.) The Court of Appeal reversed the judgment. It noted that service on Kalar as an individual and on Kalar Construction as an association or partnership was not sufficient to permit Schott to obtain a judgment against Kalar Construction as a corporation. It ultimately held, however, that “Kalar Construction Co.,” an unincorporated entity, was not properly served by substituted service, presumably because there was no declaration that the summons and complaint was subsequently mailed as required by section 415.20, subdivision (b). (Schott, at pp. 945-946, 947.)
All of the discussion in Schott pertaining to the need to allege the existence of a corporate entity, on which Residencial Perla relies, is dictum, because (1) there is nothing in the opinion which indicates that judgment was entered against Kalar Construction as a corporation; and (2) the opinion makes it clear that although Schott argued on appeal that service was properly accomplished on “Kalar, Inc.,” there is nothing in the record to indicate that Kalar Construction actually is a corporation. (Schott, supra, 20 Cal.App.4th at p. 945.) In any event, Schott is inapposite because, unlike this case, in Schott the issue is not whether service on an individual who is authorized to receive service on behalf of a corporation constitutes effective service on an unincorporated business entity which is admittedly a dba of the corporation as well as on the corporation itself.
Residencial Perla also cites Kerr-McGee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d 594 (Kerr-McGee), in passing, for the proposition that a party may be sued and served under its fictitious business name “as long as the summons is filled out correctly” and the plaintiff complies with section 474. Residencial Perla does not elaborate on the relevance of Kerr-McGee to the issue before us. In that case, the court held that Kerr-McGee Chemical Corporation could not be substituted pursuant to section 474 as a named defendant after service of the summons and complaint on its dba, Trona Medical Clinic, because the complaint neither named Kerr-McGee as a defendant nor alleged that Trona Medical Clinic was a fictitiously named defendant. (Kerr-McGee, at pp. 596, 597-601.) However, section 474’s endorsement requirement does not apply to a business which is sued under its true name, such as “Trona Medical Clinic,” which, unbeknownst to the plaintiff, is a dba of an individual or a corporation. Section 474 provides, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint,... and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: ‘To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).’ The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.” (Italics added.) Like Kerr-McGee, Residencial Perla was sued under an erroneous name, i.e., an incomplete name. Rather than precluding entry of judgment, section 474 provides that judgment may be entered, if service was otherwise effective, upon service of an amended pleading designating the defendant by its true name.
In Kerr-McGee, supra, 160 Cal.App.3d 594,the court also held that the complaint could not be amended pursuant to section 473 because although that section permits an amendment to correct a mistake in the name of a party, it does not allow amendment of a complaint to name a new party, at least not after the statute of limitations has run as to that party. (Kerr-McGee, at pp. 598-599.) The court concluded that because Kerr-McGee was a stranger to the complaint, amendment of the complaint pursuant to section 473 would allow the plaintiff to add Kerr-McGee as a new defendant. (Kerr-McGee, at pp. 598-599.) We disagree with this reasoning as well, for the reasons previously stated: Trona Medical Clinic was not an entity separate from Kerr-McGee; rather, Trona Medical Clinic was Kerr-McGee Chemical Corporation doing business under a fictitious business name. (Pinkerton’s, supra, 49 Cal.App.4th at pp. 1347-1349.) Amendment of the complaint to correct the defendant’s name to “Kerr-McGee Chemical Corporation, dba Trona Medical Clinic” would not have operated to add a new party to the complaint, but would merely have corrected a misnomer.
Residencial Perla also contends that service was not accomplished on January 24, 2005, because the complaint alleged that Vista Playa de Oro was a business entity of unknown form, and that service on such an entity must be accomplished by leaving a copy of the summons and complaint at the business location and subsequently mailing a copy of the documents. (§ 415.95.) The Baxters did not mail a copy of the documents. However, the Baxters effected personal service pursuant to section 416.10 by delivering the documents to Mr. Delgado, as discussed above. Consequently, they were not required to mail the documents.
We deny the Baxters’ request that we take judicial notice of the legislative history of section 415.95. The Baxters rely on the legislative history solely to support a point which is not material to our decision.
Next, Residencial Perla contends that jurisdiction is precluded by section 412.30, which provides that no default may be taken against a corporation unless the copy of the summons served bears a notation stating in substance, “To the person served: You are hereby served in the within action... on behalf [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” under the applicable provision of Chapter 4 (commencing with section 413.10) of the Code of Civil Procedure. Residencial Perla bases this argument on the fact that there is a summons in the record on appeal, dated April 19, 2004, which indicates that the person served was served on behalf of Residencial Perla, etc., dba Vista Playa de Oro, but fails to indicate by check mark that service was effected pursuant to section 416.20. However, there is no indication in the record that this copy of the summons is the one which was served on Mr. Delgado on January 24, 2005; rather, it appears to be the copy of the summons which the Baxters sent to be served with the first amended complaint. The Baxters did not provide a copy of the summons served on Mr. Delgado on January 24, 2005, and Residencial Perla raised no objection to service below on the basis of either the absence of a copy of the summons or any error or omission in that summons. Because the facts pertaining to the summons delivered to Mr. Delgado are not established by the record, this is a factual issue which we cannot address for the first time on appeal. (Ward v. Taggart, supra, 51 Cal.2d at p. 742.)
Section 583.210 requires filing of the proof of service of the summons and complaint; it does not require that a copy of the summons be filed. (§ 583.210, subd. (b).)
Because service of the original summons and complaint on Residencial Perla was effected and the proof of service was filed within the time period specified in section 583.210, the judgment of dismissal must be reversed.
Because the original complaint has been superseded by the first amended complaint, however, we must also determine whether the first amended complaint was validly served on Residencial Perla. (§ 471.5, subd. (a) [amended complaint must be served on defendants affected thereby].) We conclude that service of the first amended complaint has not been effected.
The Baxters’ position is that even if the original summons and complaint were not validly served, the court nevertheless had jurisdiction over Residencial Perla because the summons on the first amended complaint and the first amended complaint were validly served. Our determination that the original summons and complaint were validly served renders this question moot. Nevertheless, because the first amended complaint supersedes the original complaint, service of the first amended complaint is necessary. (§§ 471.5, 472.) We must therefore determine whether service has been effected.
On June 26, 2005, the Baxters’ agent sent the first amended complaint to be served in Mexico. The process server attempted service by delivering the documents, at the hotel, to Jorge Alberto Rincon Ramirez, who informed the process server that he was the general accountant for Residencial Perla. Mr. Rincon refused to accept service because the first amended complaint named “Vista Playa de Oro, Sociedad Anónima de Capital Variable” as the defendant. Mr. Rincon stated that he did not know of such a company.
Service on a business entity, including a corporation which does not have a registered agent for service of process listed with the Secretary of State of the State of California (see § 415.95, subd. (b)), can be achieved by “leaving a copy of the summons and complaint during usual business hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left.” (§ 415.95, subd. (a).) There is no evidence that Mr. Rincon was the person apparently in charge of the office of the business operation, that service was attempted during normal business hours, or that a copy of the summons and complaint was subsequently mailed. In the alternative, service could have been accomplished if Mr. Rincon were an officer, a general manager or a person authorized to accept service of process on behalf of Residencial Perla, the corporation doing business as Vista Playa de Oro. (§ 416.10.) There is no evidence that Mr. Rincon was such a person. Consequently, the Baxters have not met their evidentiary burden of proving that the first amended complaint was validly served on Residencial Perla. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)
DISPOSITION
The judgment of dismissal is reversed. The trial court is directed to reinstate the original complaint as to Residencial Perla, S.A. de C.V., dba Vista Playa de Oro, and to afford Robert and Judy Baxter a reasonable amount of time to serve the first amended complaint.
Plaintiffs Robert Baxter and Judy Baxter are awarded costs on appeal.
We concur: Ramirez, P.J., Hollenhorst, J.