Opinion
D071954
01-19-2018
FIA CARD SERVICES, N.A., Plaintiff and Respondent, v. TINA L. CROSS, Defendant and Appellant.
Pavone & Fonner and Benjamin Pavone for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2009-00087046-CU-PA-CTL) APPEAL from a postjudgment order of the Superior Court of San Diego County, Lisa Schall, Judge. Affirmed. Pavone & Fonner and Benjamin Pavone for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Tina L. Cross appeals from a postjudgment order of the trial court in favor of plaintiff FIA Card Services, N.A. (FIA Card Services).
In 2006, an arbitral forum entered an arbitration award against Cross and in favor of a bank that had issued Cross a credit card. A few years later, the bank, under a new name, sought to confirm the arbitration award in the trial court. The bank's petition to confirm the arbitration award was granted, and judgment was entered against Cross in the amount of the arbitration award.
Approximately seven years after judgment was entered against her, Cross sought relief in the trial court. It appears from Cross's filings in the trial court that Cross was attempting to move either (1) to vacate the arbitration award against her, or (2) to vacate a judgment that was entered after the bank successfully petitioned the court to confirm the arbitration award against her. In any event, the trial court denied Cross's request for relief in full, and in the process addressed contentions going to both motions that Cross may have been attempting to bring.
On appeal from the trial court's order, Cross raises the following contentions: (1) "There was no competent evidence that Cross agreed to arbitration," and "[w]ithout such proof, the Superior Court did not have subject matter jurisdiction to enter a judgment"; (2) "The judgment was invalid because FIA [Card Services] did not serve Cross," and therefore "it never obtained personal jurisdiction over her"; (3) "There was good cause to vacate the arbitration award since the court considered a challenge to it"; (4) "FIA[ Card Services's] petition to confirm the award was untimely according to its own position, and controlling law, that the statute of limitations was one year"; and (5) "The judgment is void because FIA [Card Services] had no standing to sue for MBNA[ Bank of America, N.A.'s (MBNA)] arbitration award." (Some capitalization omitted.) The bank did not file a responsive brief in this appeal and has not appeared.
We conclude that none of Cross's arguments is meritorious. We therefore affirm the trial court's order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Although we have very little information in the record as to the facts underlying the arbitration and resulting arbitration award that was ultimately entered against Cross, the trial court explained that this case originated after MBNA provided Cross with a line of credit that was governed by a written agreement. Cross failed to make payments consistent with the agreement, and MBNA submitted the matter to the National Arbitration Forum for arbitration.
On July 31, 2006, an arbitration award was issued in favor of MBNA, in the amount of $39,325.76. The arbitrator was identified as Dr. Urs Martin Lauchli. The arbitration award indicated that it was "[e]ntered and [a]ffirmed in the State of California," but did not indicate the city or county in which the arbitration took place, nor which parties attended.
Cross contends that in 2007, FIA Card Services filed a petition to confirm the arbitration award entered against Cross. The record contains a petition to confirm the arbitration award filed by FIA Card Services in 2007. The record also contains a copy of a "REQUEST FOR DISMISSAL" filed on May 14, 2008, by FIA Card Services, in which it identifies the matter for which dismissal, without prejudice, was being sought as a "Petition to Confirm Arbitration Award." The court entered the dismissal, as requested, on May 14, 2008.
On April 7, 2009, FIA Card Services filed a second petition to confirm the arbitration award. This petition to confirm the arbitration award included as an attachment an affidavit from an employee of the respondent, authenticating the written agreement between the petitioner and MBNA. Also attached to the petition was a proof of service form, indicating that a process server had served the document on a John Doe at 2174 Guy Street in San Diego on May 9, 2009. The process server described the John Doe as "CO-OCCUPANT, White, Male, 40 Years Old, Black Hair, 5 Feet 9 Inches, 195 Pounds." The process server also indicated on the proof of service form that this method of service was undertaken only after he had twice attempted service on Cross at that residence. The proof of service further stated that a copy of the documents was also mailed to Cross.
In a declaration filed in this proceeding, Cross concedes that she has resided at 2174 Guy Street since 1999.
A hearing was set for July 7, 2009. Cross did not appear and filed no opposition. On July 8, 2009, the trial court issued an order granting FIA Card Services's petition to confirm the arbitration award. That same day, judgment was entered in favor of FIA Card Services and against Cross in the amount of $39,715.76.
More than seven years later, in November 2016, Cross filed a number of documents in the case. Among these were documents titled, "Tina Cross' Notice of Motion to Vacate Arbitration Award"; "Tina Cross' Points and Authorities in Support of Motion to Vacate Arbitration Award"; "Declaration of James R. Arabia in Support of Motion to Vacate Judgment"; and "Declaration of Benjamin Pavone in Support of Cross' Motion to Vacate Arbitration Award." The thrust of these documents was that Cross had never agreed to arbitrate her claims with the bank and the bank had not submitted any documents establishing that she had so agreed and, thus, any arbitration award against her was void. Cross also maintained that she had never been served with FIA Card Services's petition to confirm the arbitration award and that the process server had falsified the proof of service.
There are discrepancies in the titles of these documents, in that three of the documents refer to a motion to vacate an arbitration award, whereas the Arabia declaration refers to a motion to vacate the judgment. The notice of motion does not cite to the statutory basis for the motion, and thus provides no clarification as to the nature of the motion that Cross was attempting to bring.
FIA Card Services did not respond to Cross's filings.
The trial court held a hearing on December 30, 2016. FIA Card Services did not appear. The trial court stated at the outset of the hearing, "This is on for a motion to vacate arbitration award in this case." (Italics added.) After explaining the court's tentative ruling to deny the motion to vacate the arbitration award, the trial court granted Cross's request for a continuance so that her attorney could address the issues that the court had raised. The court set another motion hearing for February 24, 2017.
In February 2017, Cross filed additional documents, including documents titled "Tina Cross' Supplemental Brief Regarding Motion to Vacate Judgment"; "Declaration of Amelia Johnson in Support of Motion to Vacate Judgment"; "Supplemental Declaration of James R. Arabia in Support of Motion to Vacate Judgment"; "Declaration of Cameron Johnson in Support of Motion to Vacate Judgment"; "Supplemental Declaration of Benjamin Pavone in Support of Cross' Motion to Vacate Arbitration Judgment"; and "Declaration of Tina Cross in Support of Motion to Vacate Judgment." (Some capitalization omitted.) In the document titled "Tina Cross' Supplemental Brief Regarding Motion to Vacate Judgment," Cross states, "Pursuant to permission given by the Court on December 30, 2016, Cross files her supplemental brief addressing a series of concerns and correcting a number of claimed deficiencies in her original motion to vacate the judgment in this case. (Some capitalization omitted.) FIA Card Services did not respond to any of these filings.
The copies of these documents in the appellant's appendix are not file stamped copies that would establish the dates on which they were filed with the trial court. Because respondent has not appeared and has not challenged Cross's proffer that the documents were filed in the trial court, we assume for purposes of this appeal that the documents were, in fact, filed in the trial court, and we approximate the filing dates based on the dates that appear next to the signatures on the documents.
Despite what is stated in the quotation from Cross's "Supplemental Brief," Cross's original notice of motion and motion referred not to a "motion to vacate the judgment," but to a "motion to vacate arbitration award."
The trial court held a hearing on February 24, 2017. FIA Card Services again did not appear. At the conclusion of the hearing, the court entered an order denying the motion without prejudice.
Cross filed a timely appeal.
III.
DISCUSSION
A. Cross's contention that the trial court lacked subject matter jurisdiction to enter a judgment against her is without merit
Cross's first contention is that "there was no competent evidence that Cross agreed to arbitration," and, thus, the trial court "did not have subject matter jurisdiction to enter a judgment." (Some capitalization omitted.)
The nature of Cross's motion in the trial court becomes relevant for this discussion. The only motion that Cross filed, and provided notice of, was titled "Motion to Vacate Arbitration Award." Pursuant to Code of Civil Procedure section 1288, "A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner" (italics added). As the trial court informed Cross's attorney at the hearing, the "filing and service deadline for a petition to vacate is jurisdictional"; the failure to comply with the time requirements deprives the trial court of the authority to vacate an arbitration award. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211 [§ 473, subd. (b) does not offer relief from the 100-day limitation for filing a petition to vacate an arbitration award, which is a mandatory deadline deemed jurisdictional in nature].) Cross filed her initial set of documents in 2016, more than seven years after FIA Card Services obtained the trial court's confirmation of the arbitration award and judgment had been entered in its favor on the award. This is nowhere close to meeting the 100-day filing requirement for a request to vacate an arbitration award. Thus, Cross's motion to vacate the arbitration award was untimely.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
However, perhaps out of an abundance of caution, it appears that the trial court offered Cross the opportunity to treat the motion that she filed as a motion to vacate the judgment, as opposed to the arbitration award, even though Cross never filed a formal motion to vacate the judgment. Given that the trial court permitted Cross to argue matters as if she had filed a motion to vacate the judgment, we will address Cross's contention that the court lacked subject matter to enter a judgment confirming the arbitration award against her, as if the argument had been made pursuant to a properly filed motion to vacate the judgment. We conclude that Cross's argument is without merit, even in this context.
Cross contends that because there was no evidence that she agreed to arbitrate, the trial court lacked subject matter jurisdiction to enter an enforceable judgment based on the arbitration award entered against her. She argues that the holding in United Firefighters of Los Angeles v. City of Los Angeles (1991) 231 Cal.App.3d 1576, 1581 (United Firefighters) permits her to challenge the arbitration award at any time, if she is challenging the court's subject matter jurisdiction based on the lack of an agreement to arbitrate.
United Firefighters involved an employment dispute between a firefighter, Edward Salas, and the City of Los Angeles and the Los Angeles City Fire Department (jointly, the City). (United Firefighters, supra, 231 Cal.App.3d at p. 1579.) After criminal charges were filed against Salas, he was removed from his position. Salas was eventually acquitted of all the charges. (Ibid.) After his acquittal, Salas lodged a grievance pursuant to a dispute resolution procedure contained in the Memorandum of Understanding (MOU) between the firefighters' union and the City. (Ibid.) The City disallowed the grievance, contending that Salas was no longer an employee and therefore, no longer enjoyed the rights set forth in the MOU. (Id. at p. 1580.) Salas and the firefighters' union "filed a petition in superior court requesting an order to compel appellants to arbitrate whether Salas should be granted a new board of rights hearing pursuant to City's charter." (Ibid.) The City opposed the petition on the ground that the MOU no longer governed Salas. (Ibid.) The trial court issued an order compelling the parties to arbitrate, concluding that the MOU encompassed discharged firefighters until they " 'exhausted all of their legally possible action to obtain reinstatement.' " (Ibid.)
The parties proceeded to arbitration, and the arbitrator issued an award in favor of Salas and his union. The union filed a petition to confirm the arbitration award. In response, the City again argued that discharged employees were not within the scope of the MOU. (United Firefighters, supra, 231 Cal.App.3d at p. 1580.) The trial court confirmed the arbitration award. (Ibid.)
On appeal from the order confirming the arbitration award, Salas and the union argued that the City could not "argu[e] Salas lacked standing to lodge a grievance" because they had failed "to timely request an order to vacate the arbitration award." (United Firefighters, supra, 231 Cal.App.3d at p. 1581.) The appellate court rejected this contention. The court explained:
"In the instant case, appellants chose not to file a petition to vacate the arbitration award (See § 1288), [fn. omitted] and they do not contest that their response, which did seek to vacate the award, was time barred by section 1288.2. [Fn. omitted.] Failure to file a timely response prevents a party from vacating an award on any of the grounds provided in section 1286.2. [Citations.]
"We think it clear, however, appellants are not appealing the correctness of the award. Rather, they are attacking the authority of the trial court to compel them to submit the matter to arbitration. An order to compel arbitration is an interlocutory order which is appealable only from the judgment confirming the arbitration award, or in certain exceptional situations is reviewable by writ of mandate. [Citations.] As Professor Witkin has observed: 'A party does not waive his right to attack the order by proceeding to arbitration; the order is reviewable on appeal from a judgment confirming the award.' " (Id. at pp. 1581-1582, italics added.)
As we have previously discussed, section 1288 provides in relevant part: "A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner." Section 1288.2 has a similar time requirement: "A response [to a petition to confirm an arbitration award] requesting that an award be vacated or that an award be corrected shall be served and filed not later than 100 days after the date of service of a signed copy of the award . . . ."
Cross suggests that she is attempting to do what the appellants in United Firefighters sought to do. Specifically, she contends that her position that she may "undo an arbitration judgment . . . on the theory that there was no jurisdiction to confirm the arbitration award without a foundational showing that Cross agreed to it" is, essentially, the same as the Salas appellant's contention that the trial court erred in compelling them to arbitrate in the first place. She contends that she is presenting an attack on the legitimacy of the arbitration.
However, United Firefighters does not stand for the proposition that one who was a party to arbitration and who was never compelled to arbitration by a court in the first place can attempt to undermine an arbitration award at any point in time. Rather, it stands for the more limited proposition that a party who has been compelled, by a court, to arbitrate a dispute may challenge the basis of the trial court's order compelling arbitration even if that party fails to move to vacate a resulting arbitration award within the 100-day filing limit for moving to vacate an arbitration award. Here, there is evidence that Cross was served with notification of the arbitration proceeding. The dispute was subsequently arbitrated in accordance with the Federal Arbitration Act. Further, it appears that the arbitration of the claim against Cross proceeded without any objection from Cross that the claim was not subject to arbitration. The record clearly does not demonstrate that Cross was compelled to arbitrate the claim against her. As a result, the United Firefighters decision cannot assist her.
It is not clear from the record whether Cross participated in the arbitration. The arbitrator's decision states that the claim was properly served on Cross in accordance with arbitration rules, the parties had a written agreement to arbitrate the dispute at issue, no party had asserted that the arbitration agreement was invalid or unenforceable, and that "[t]he [p]arties have had the opportunity to present all evidence and information to the Arbitrator" (italics added). The decision does not state, however, which parties were present for the arbitration hearing.
It would be improper to attempt to extend United Firefighters to the procedural posture in this case for the fundamental reason that, in most respects, arbitration proceedings are subject to ordinary rules of forfeiture. (See, e.g., Law Offices of Ian Herzog v. Law Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th 672, 678; Goossen v. Adair (1960) 185 Cal.App.2d 810, 817.) "Those who are aware of a basis for finding the arbitration process invalid must raise it at the outset or as soon as they learn of it so that prompt judicial resolution may take place before wasting the time of the adjudicator(s) and the parties." (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 328-329.) Thus, one may forfeit one's right to challenge the arbitrability of a claim by allowing the arbitration to proceed without objection.
United Firefighters did not involve an issue of forfeiture. Rather, in United Firefighters, the City sought to avoid arbitration prior to being ordered to arbitrate, and raised the lack of a valid, enforceable arbitration provision in the trial court prior to being ordered to arbitrate. Nevertheless, the trial court compelled the City to arbitrate. Given the trial court's order, the City had no other forum in which to challenge the propriety of the order compelling arbitration until after the arbitration was completed. Thus, where a trial court compels arbitration despite a party's objection to arbitration, the party resisting arbitration may seek review of the ruling on appeal from an order that confirms the award (Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 648), and may challenge the validity of the award even if the party failed to move to vacate the arbitration award within 100 days of entry of the award (United Firefighters, supra, 231 Cal.App.3d at pp. 1581-1582).
In the circumstance where a court orders the parties to arbitrate, if the arbitration process is later found to be invalid, the responsibility for the wasting of resources lies with the trial court, not the litigant, and there has not been any gaming of the system. However, in the circumstance where a party participates in the arbitration process or allows the arbitration to go forward without disclosing that there is reason to believe that the dispute is not subject to arbitration, the responsibility for the wasting of resources lies with the litigant and the fairness of the system may be undermined; therefore, a party who fails to oppose arbitration may be properly held to have forfeited any contention that the arbitration was improper.
It would be unfair to allow a party who has grounds to challenge the arbitrability of a dispute to go forward with an arbitration proceeding, at the expense of time, energy, and funds of the opposing party as well as the resources of the arbitral forum, and then come to court years later to attempt to undermine the entire arbitration process by raising its challenge only after the arbitration was completed. This would allow such a party a second bite at the proverbial apple if that party were unhappy with the result of the arbitration proceeding.
Because Cross permitted the arbitration to proceed without objection and there is no indication that the arbitration award was the result of a trial court order compelling her to arbitrate, Cross has forfeited her contention that the arbitration of the bank's claim against her was invalid. She may not come to court for the first time a decade after the fact and attempt to undermine a judgment entered based on the arbitration award. B. Cross's contention that the trial court erroneously rejected her request to "vacate the arbitration award" is without merit because that request was untimely
With respect to Cross's argument that "there was good cause to vacate the arbitration award since the court considered a challenge to it" (capitalization omitted), Cross states that she "is not challenging the underlying arbitration award given the passage of the time limits to do so." (Italics omitted.) She nevertheless goes on to argue, "[b]ut the lower court did find that even if it entertained a petition to do so regardless of timing, it would reject Cross' motion because none of the grounds under [section] 1286.2 existed to justify such a finding."
This argument is not well taken. As Cross concedes, and as we have already discussed, such an argument is untimely. The fact that the trial court decided to address the issue on the merits does not alter the fact that no matter how meritorious an argument she might have had to vacate the arbitration award, such an argument had to be presented to the court within 100 days after she was served with the arbitration award. Cross did not meet this deadline.
We therefore reject Cross's contention that the trial court should have vacated the arbitration award that was entered against her in 2006 based on her filings in 2016. C. Cross has forfeited any contention that the petition to confirm the arbitration award was untimely by failing to raise the issue at the time the petition to confirm the arbitration award was brought
Cross contends that there was a one-year statute of limitations that applied to FIA Card Services with respect to bringing a petition to confirm the arbitration award. She suggests that because FIA Card Services did not file its successful petition to confirm the arbitration award until 2009, approximately three years after the arbitration award was entered, the trial court should have vacated the judgment that was based on the untimely petition to confirm the arbitration award.
Cross's contention fails because she failed to raise the statute of limitations in response to FIA Card Services's petition to confirm the award in 2009 and, instead, waited until after judgment was entered and a number of years had passed to raise the issue. Because a statute of limitations is an affirmative defense, it is forfeited if it is not properly asserted early in the proceeding. (See, e.g., Minton v. Cavaney (1961) 56 Cal.2d 576, 581 [defendant forfeits statute of limitations defense "by failing to plead that defense in the answer to the complaint or by specifying the statute of limitations as a ground of its general demurrer"]; County of Los Angeles v. Commission on State Mandates (2007) 150 Cal.App.4th 898, 912 ["Forfeiture of a time-bar defense transpires by the failure to raise the applicable statute of limitations in the answer."].) D. Cross's argument that FIA Card Services lacked standing to move to confirm the arbitration award is without merit
Cross makes a conclusory argument that "the judgment is invalid on its face based on FIA[ Card Services's] lack of standing." She asserts that the 2009 petition "was brought in the name of FIA Card Services . . . ," but that the "subject arbitration award was entered in the name of " 'MBNA . . . .' " According to Cross, because her attorney attested to the fact that "[t]here is no assignment in the case file," this must mean that FIA Card Services lacked standing and the judgment in its favor must be void.
What Cross fails to acknowledge is that there is evidence in the file to support the factual conclusion that MBNA underwent a name change and is now called FIA Card Services. Specifically, a document, which was included as an attachment to one of Cross's attorney's declarations, titled "AFFIDAVIT IN SUPPORT OF [PETITION] TO CONFIRM ARBITRATION AWARD" and is signed by Gary Springs, who identifies himself as an employee of FIA Card Services, identifies the "petitioner" as "FIA CARD SERVICES, N.A., FKA, MBNA AMERICA BANK, N.A." and provides a single address for the petitioner. The "FKA" is shorthand for "formerly known as" and indicates that MBNA underwent a name change. (See Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1018 [discussing admission that corporate entity "was formerly known as" an entity with a different name, and referring to a verified answer that included a reference to " 'KorusFood.com, fka Felix and Sons, Inc.' "].) That FIA Card Services and MBNA are the same entity that underwent a name change is confirmed by our Supreme Court in Parks v. MBNA America Bank, N.A. (2012) 54 Cal.4th 376, 380: "As indicated in the Court of Appeal's opinion below, defendant MBNA . . . 'renamed itself as FIA Card Services . . . .' " E. The trial court made factual findings that FIA served Cross with its petition to confirm the arbitration award; these findings are supported by substantial evidence
Further, we do not know whether FIA Card Services may have filed other documents indicating why it was entitled to have a judgment entered in its favor and against Cross, based on the arbitration award. There is nothing in the record presented to us on appeal that would indicate that it includes all of the documents filed by FIA Card Services in relation to its petition to confirm the arbitration award. Although Cross's attorney attested to the fact that the case file did not contain evidence of an "assignment," no such assignment would be necessary if an entity changed its name. There is no similar attestation that the record did not contain other evidence that could support FIA Card Services's standing to enforce the arbitration award.
Cross contends that "the judgment was invalid because FIA [Card Services] did not serve Cross" (some capitalization omitted). According to Cross, the trial court erred in "declin[ing] to believe that FIA [Card Services] fabricated the service affidavit with respect to service of the subject arbitration petition."
Principles of due process, including the need for personal jurisdiction to be established over a defendant, require that the applicable statutory procedures for service of process be satisfied. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) A judgment entered against a defendant who was not served with process in compliance with the proscribed statutory procedures is void. (Ibid.) Pursuant to section 473, subdivision (d), the court may set aside a judgment which, although valid on its face, is void due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)
Factual findings made by the trial court in determining whether service of process was valid are reviewed for substantial evidence; we accept the trial court's findings as long as they are supported by evidence that is reasonable, credible, and of solid value. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182 [assessing whether substantial evidence in the record supports trial court's implicit finding that summons and complaint properly served by substituted service].) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) We do not reweigh evidence, reassess the credibility of witnesses, or resolve conflicts in the evidence. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.)
Section 415.20 authorizes substituted service of process in lieu of personal delivery. It provides: "If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, . . . a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left." (Id., subd. (b).)
The reference to " 'reasonable diligence' " in section 415.20, subdivision (b) means that "an individual may be served by substituted service only after a good faith effort at personal service has first been made . . . . Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ' "reasonable diligence." ' " (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389, citations omitted.)
"The filing of a proof of service creates a rebuttable presumption that the service was proper . . . if the proof of service complies with the applicable statutory requirements." (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; Evid. Code, § 647.)
FIA Card Services filed a proof of service from a registered process server who attested that he served FIA Card Services's petition to confirm the arbitration award on a John Doe at 2174 Guy Street in San Diego on May 9, 2009. The process server also attested to the following description of the individual with whom he left the document: "CO-OCCUPANT, White, Male, 40 Years Old, Black Hair, 5 Feet 9 Inches, 195 Pounds." Further, the registered process server indicated that he attempted this method of substituted service only after he twice attempted to personally serve Cross at that location. In compliance with section 415.20, subdivision (b), the process server further attested that he mailed a copy of the documents to Cross at that same address.
Cross concedes in a declaration submitted to the trial court that she has resided at the address where the process server attests he both provided the petition to confirm the arbitration to a John Doe in person and also mailed a copy of the document.
In filing the proof of service, FIA Card Services created a rebuttable presumption that Cross was served and that the trial court had personal jurisdiction over her. In her filings in 2016 and 2017, Cross attempted to rebut the presumption by offering the declaration of "everyone who reportedly lived at the residence around the time the petition to confirm was served," in which they stated that no one matching the description provided by the process server lived there at the time, and declaring that the only male who did live there at the time was James Arabia, who had light brown hair and was in his 50's. Arabia attested that he had never been served with the relevant papers, and Cross attested similarly.
The trial court rejected these self-serving declarations, and indicated that Cross could have attempted to contact the process server in order to try to better demonstrate that his declaration was fraudulent. The court found the declarations to contain mere speculation that the process server had used Google to search the name "James Arabia" and to describe an individual whose photograph appeared in the results of that search. The court concluded that "those declarations are insufficient to establish that the proof of service signed by the process server under penalty of perjury is incorrect."
The trial court was entitled to rely on the proof service filed by the registered process server, and could believe the statements attested to by the process server over the statements made in the declarations submitted by Cross, in reaching the conclusion that FIA Card Services properly served Cross. The proof of service is sufficient evidence to support the trial court's factual finding that Cross was served with the petition to confirm the arbitration award.
IV.
DISPOSITION
The order of the trial court is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.