Whenever a civil lawsuit is filed, the responding party must receive formal notice that the process has been commenced. In legal parlance, the term is “Service of Process”. Until the other side has been properly “served,” the judge cannot make any permanent orders or judgments. This article discusses the acceptable methods of service of process at the outset of a California civil case.
Who Can Serve the Papers
The “server” or “process server” can be a friend or relative, a coworker, a county sheriff or marshal, a professional process server, or anyone over 18 who is not a party in the case.
How Must the Papers Be Served?
There are several ways to serve papers in a civil lawsuit. The information below provides a general overview of how service may be accomplished at the outset of a civil proceeding.
“Personal service” occurs when the lawsuit is personally delivered to the opposing party by handing the papers to the party being served. If the party being served refuses to take the papers, they can be left on the ground in front of him or her. If he or she takes the papers and tears them up or throws them away, service is still considered to be valid. The person being served does not have to sign anything. The service can take place at the party’s home, work, or anywhere on the street. Personal service is complete the day the papers are served.
Substituted service is usually used after the server unsuccessfully attempts to personally serve the papers on multiple occasions – usually 3 or more attempts. The server must try to serve the papers on different days of the week and different times of the day, at times when the other person is likely to be home or at work.
If the server is unable to find the person to be served on each of these attempts the server can, on the last attempt, leave the papers with someone at the other party’s house, at least 18 years old, who lives there. If the server is trying to serve the papers at the other party’s work, then the papers can be left with someone at the office that appears to be in charge and is at least 18 years old.
The server must tell the person that he or she hands the papers to that they are legal documents for the other party. The server must also write down the name and address of the person accepting the papers. If the person will not give his or her name, the server must write down a detailed physical description of the person. The server must also mail a copy of the papers to the other party at the address where the papers were left.
Once the process has been completed, the server must prepare a “Declaration of Due Diligence,” which describes every attempt he or she made to serve the papers in person. It should include dates, times of day, and the result of those efforts at service. The server then signs the Proof of Service, which is then filed with the court. Substitute service is complete ten days after the day the papers are mailed.
Service by Notice and Acknowledgement of Receipt
Service can be effectuated with a Notice and Acknowledgment of Receipt when the other side agrees to be served by mail and is willing to sign a document for the court saying that they received the papers.
Service by Publication
“Service by publication” involves publishing notice of the summons and complaint in a newspaper of general circulation in the area where the other side is likely to be. You must ask the court’s permission to do this. It is usually used when you do not know how to find the other side and do not have an address or workplace for him or her.
Before the court will allow service by publication, the party serving the papers must prove to the court he or she diligently tried to locate the other side to effect service by other means. The server is required to complete a “Declaration of Due Diligence” describing every attempt that was made to find the other side.
Service by Posting (at the courthouse)
“Service by posting” means that your server or the court clerk posts the summons and complaint in the designated place at the courthouse for court notices. Like “service by publication,” you have to ask the court’s permission to do this. It is usually used when you do not know how to find the other side and do not have an address or workplace for him or her. To qualify for “service by posting” and do away with the requirement to publish your summons and complaint in a newspaper, you usually have to qualify for a fee waiver.
Filling Out and Filing the Proof of Service
The declaration of service (or “Proof of Service”) is the court recognized document attesting to the fact that you served the notice in the manner described therein. This verification must be made under penalty of perjury.
Once service has been accomplished, the server then fills out a proof of service, detailing when, where, and how the papers were served. The server signs the proof of service and returns it for filing with the court.
Service of Process can be complicated but is an essential step to prevail in a California civil case. As always, if you have any questions about this or any other service we provide, please call 925-237-9216 or schedule a free telephone consultation on our website.