By: Akanksha A. Panicker
Once formal notice has been given to the other party, the legal process has been said to have started. Service of the court papers means that the defendant is supplied with a copy of any paper filed with the court. Consequently, a third person [the server] delivers the paperwork so that the judge can make a permanent order or judgment. The process server is required to carefully fill out and sign the Proof of Service detailing how service was done, on whom, where, and when and file it with the court clerk. A copy of this proof is provided to the plaintiff.
[1.0] CALIFORNIA PROCESS SERVICE: WHO CAN SERVE
There are three ways to serve a claim: [A.] service by the Sheriff from a courthouse near where the defendant lives or works, [B.] hire a registered process server, or [C.] having a friend or family member over the age of eighteen provide the service.
If the sheriff is responsible for service, two copies of the court papers and a cheque or fee waiver must be supplied with the complete Sheriff’s Instruction Form. Court papers must be received by the Sheriff a minimum of forty days before the court date, especially considering out-of-county service takes 30 days, and the Sheriff needs the papers at least ten days before the last day of service.
It must be remembered that service on a corporation can also be done on their agent. If the city is being sued, the city clerk or agent authorized to accept service must be served. A county clerk fulfills the same responsibility in case the county is being served. However, if the State of California is being sued, service can be rendered on the state Attorney General’s office.
Notice of most types of motions and the papers in support must be filed with the court and served on all other parties in advance. This comprises at least sixteen court days before the scheduled hearing date of the motion. However, papers in opposition of a motion must be filed with the court and served on all other parties at least nine court days before the hearing date, and reply papers must be filed with the court and served on the other parties at least five court days before the hearing date.
[2.0] TYPES OF CALIFORNIA PROCESS SERVICE
The ‘server’ or ‘process server’ can be over eighteen and is not a party to the case. This means that a friend or relative, a co-worker, or even the county sheriff or marshal can serve the process. However, the petitioner and respondents are absolutely not allowed to serve their own papers.
The types of service being furnished will depend on the service stage or the number of times the service has actually occurred. There is a hierarchy of service, though rudimentary, and personal service is always preferred.
[2.1] PERSONAL PROCESS SERVICE
“Personal service” means that the server personally hands over the court documents to the receiving party. These papers can be delivered at the party’s home, work, or any place where they might be. Furthermore, the process server must identify that the party being served is the defendant and consequently informs them that the papers are the court papers requiring their presence. Service is complete even if the party being served takes the papers and tears them up, and the proof of service will still be held to be valid. Personal service is complete the day the papers are served.
Personal service is the preferred type of service, allowing the court to verify the service with the server. Consequently, it is valid in most cases. Personal service can ensure that the papers are served on the represented party’s attorney by personal service, mail, or express mail. Papers opposing a motion and all reply purposes need to be served the next business day after the papers are filed with the court.
Notice of a motion or other papers may be hand-delivered to the attorney or left at the attorney’s office with the receptionist or other person in charge, in a clearly labeled envelope. If no one is there, the papers may be left in a conspicuous place in the office, between nine in the morning and five in the afternoon. If the motion notice is hand-delivered to the party, it must be done between eight in the morning and six in the evening to an individual 18 years of age or older.
[2.2] PROCESS SERVICE BY MAIL
In service by mail, the documents are sent to the party being served at their home. The server needs to mail the party being served to their business address to the owner at the main office or the agent for service if the party being served is a business. However, a home or mailing address is sufficient if the party is a person.
The server then fills out a proof of service detailing to whom the papers were mailed and their address. The service by mail should be complete five days after the papers are mailed. However, mail service does not ensure that someone received the paperwork.
Substituted service is used after several attempts to personally serve the papers have failed, which means that the server is often required to serve the party several times personally. If the server cannot find the party on different days of the week and times of day, they can leave the papers with someone of suitable age and discretion who lives in the party’s house or their place of work. However, it is necessary to inform them that these are legal documents for the other party and write down the individual’s details to whom they delivered service, often accompanied with a detailed physical description.
A declaration of due diligence must be documented with every attempt made to serve the papers in person. The server has to sign the document under the penalty of perjury. A Proof of Service should be filled and signed, wherein the server has to make sure to write the name of the person he or she left the papers with (or a detailed physical description). Substituted service is often done ten days after the papers are mailed.
The acknowledgment of service by mail by the signature of the receipt allows for this method. The server is responsible for mailing the summons and complaint to the defendant with twin copies of the notice and acknowledgment receipt. The purpose of one copy is to be signed by the defendant as proof of receipt in the mail and is returned to the server so that they can fill out a proof of service with the details. However, it is necessary to attach the returned Notice and Acknowledgement of Receipt since the service by Notice and Acknowledgment of Receipt is complete on the date the other side signs the Acknowledgment of Receipt portion of the form.
Eviction or unlawful detainer cases require different forms of service. However, the landlord can conduct nail and mail service by posting on the premises at issue in the eviction and mailing after many attempts to serve have been passed. Often, this is after the server has tried to locate the person to be served and cannot find any individual on the site. Consequently, a Declaration of Due Diligence, as well as an application to the court asking for permission to nail and mail, must be done. If the application is approved, the server is allowed to post the summons in a highly conspicuous place and send the papers by certified mail to the tenant’s last known address.
Service by publication is a manner of service of the last resort. Essentially, the summons and complaint are put forth in a newspaper generally circulating where the other side likely lives and requires specific permission from the court. It is necessary to prove that every other step has been taken to find the other side before service by publication, the standard of which depends on the court. However, most require one to locate the other side at their last known address and contact the family to identify their whereabouts. Failure to record all attempts or to falsify attempts is a form of perjury.
An ex-parte request for the court order to serve by publication needs to be done, attached with a proposed order. The request’s grant means signing the order and the subsequent publication of the court documents in a newspaper the court deems fit. A list of these acceptable newspapers is with the court clerk, and the newspaper must supply an affidavit for the time and place of publication. Service by publication is complete at the end of the 28th day after the first date the summons and complaint are published in the newspaper.
Service can also be enacted similarly by requesting the court clerk to post the summons and complaint in a visible place designated for court notices at the courthouse. However, to opt for service in this manner without taking up the responsibilities for service by publication, there is a necessity to qualify for a fee waiver. This means that the court needs proof of diligence and the filing of a request for a fee waiver and an ex-parte request to serve by posting.
The small claims court clerk can only do service by certified mail. There is a fee of USD15 to ensure that the defendant has been served by certified mail, and the receipt must be returned and signed by the court. Service by certified mail is complete on the day the certified mail receipt is signed.
However, service by mail can be done for any party living out of state. This means that a copy of the paperwork to be served is sent by first-class mail to the individual. It is necessary that postage herein be prepaid and that the return receipt is requested with the server completing a proof of service for an indication of how the papers were served.
Service by certified mail covers out-of-state parties. However, the service of any individual outside the country is governed by the Hague Convention on service.
Notice of motion or other papers can be deposited in a post office or any postal facility under the United States Postal Service maintenance. The documents must be addressed to the individual upon whom they are to be served and their last known office or residential address with the completed but unsigned Proof of Service. It is also necessary to include a notation of the date and place of mailing or an unsigned certificate of mailing.
It must be remembered that there are increased notice times for notice made by mail. Furthermore, it is necessary to deliver the notice of papers to the court clerk as enclosed in an envelope addressed to the party in the clerk’s care if there are no residential addresses that can be found. The back of the envelope must state, “Service is being made under Code of Civil Procedure section 1011(b) on a party whose residence address is unknown, [Name of the party whose residence address is unknown] and [Case name and number]’”.
[3.0] SERVING A BUSINESS
Service of an individual means that the defendant gets the papers, with multiple defendants getting individual copies of the documents. However, the service of a single-owner business or a sole-proprietorship means that the owner needs to be furnished with the documents.
The service of a partnership under its business name means that only one partner needs to be served. This is not true if both the business and the partners are being served, wherein it is necessary to serve each partner. For a limited partnership, the general partner, general manager, or service agent (if there is one) can be served.
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1.California Code of Civil Procedure 415.20.
(a) instead of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, 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 were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
(c) Notwithstanding subdivision (b), if the only address is reasonably known for the person to be served a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.
(Amended by Stats. 2017, Ch. 129, Sec. 1. (AB 1093) Effective January 1, 2018.)
2.California Code of Civil Procedure 1010, 1011, 1012, 1013, 1015, 1016
3.California Code of Civil Procedure 1005(c))x
4.California Code of Civil Procedure 1011(a))
5.California Code of Civil Procedure 1011(b)
6.California Code of Civil Procedure 415.45.
7.Judicial Council POS 030) located online at http://www.courts.ca.gov/forms.htm.
8.California Code of Civil Procedure 1005(b), 1013(a), (b)
9.California Rules of Court3.252