Service of Process
Service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant), court, or administrative body in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.
Notice is furnished by delivering a set of court documents (called “process”) to the person to be served.
Ordinarily, service of a summons (and its related complaint) is made within California by personal service (CCP §415.10), substituted service (CCP §415.20), service by mail and acknowledgment of receipt (CCP §415.30), or service by publication when the plaintiff cannot with reasonable diligence serve the defendant by any of the other methods listed here (CCP §415.50). Other provisions, however, apply in particular circumstances.
Manner of Service of Process When No Procedure Provided
When no provision for service of summons has been made in CCP §§413.10–417.40 or under any other law, the court in which the action is pending may direct that service be made in a manner reasonably calculated to give actual notice to the party to be served and may prescribe the manner in which proof of service is to be made. CCP §413.30.
Situations for which no statutory procedure for service of summons is provided may appear to be rare, but CCP §413.30 may have broader use than its literal language suggests. In Cohen v Board of Supervisors (1971) 20 CA3d 236, indigent petitioners in marital actions sought to have their county board of supervisors and the State Controller ordered to pay costs of publication to serve respondents who could not be found for other means of service specified in CCP §§415.10–415.50. The court of appeal held that an indigent petitioner could be permitted under CCP §413.30 to serve the summons at the respondent’s last known address by mail and posting because, although publication was theoretically possible, it was not a practical method under the circumstances.
Service of Process within California
Code of Civil Procedure §417.10 provides that, when service of process is made on a person within California, the content of the proof of service depends on the manner of service.
Service of Process by Mail
Service of notices and other papers may be made by mail when: (1) the person on whom service is to be made resides or has his or her office at a place where there is a delivery service by mail, or (2) the person making service and the person on whom it is to be made reside or have their offices in different places between which there is a regular communication by mail.
Thus, service by mail on a party or on his or her attorney is permissible even when the person making service and the person being served reside or have their offices in the same city, as long as mail delivery is available. See Marsden v Collins (1937) 23 CA2d 148.
Because service may almost always be made by mail under CCP §1012, notices and other papers are usually served in this manner. Currently, California courts are beginning to take increasing advantage of technological changes; electronic filing and service of papers are becoming more common and are mandatory in some circumstances.
Proof of Service for Service of Process
Under CCP §417.10, when service of process is made on a person within California, the content of the proof of service depends on the manner of service. In the case of personal or substituted service or service by mail, the declaration of the person making service must show: the time, place, and manner of service; and, facts showing that the service was made in accordance with CCP §§413.10–417.40 (including a statement that the server was at least age 18 and was not a party to the action (see CCP §414.10). For substituted service on a natural person, facts establishing reasonable diligence in attempting personal service; the name of the person to whom a copy of the summons and complaint was delivered (this may not be required when the person refuses to divulge his or her name) and, if appropriate, the person’s title or the capacity in which he or she was served; and, for an action against a corporation or unincorporated association, that the notice required by CCP §412.30 appeared on the copy of the summons served, if in fact it did.
Service of Process for a Petition and Written Notice of Hearing
The petition and written notice of the time and place of the hearing must be served as prescribed by CCP §1005(b), the statute that establishes general service rules for motion papers. Personal service must be done 16 court days. By mail if the place of mailing and place of address are in California, 16 court days plus 5 calendar days. By mail if either the place of mailing or place of address is outside California but within the United States, 16 court days plus 10 calendar days. By mail if either the place of mailing or place of address is outside the United States, 16 court days plus 20 calendar days. By facsimile transmission, express mail, or another method of overnight delivery, 16 court days plus 2 calendar days.
The written notice of time and place of hearing should be in the form of a notice of motion.
Service of Process for Other Papers
Service of a notice or other papers on a party who has been served with a summons or has appeared in the action may be made under CCP §1011 by personally serving the party or serving “in the manner specifically provided in particular cases” (CCP §1011(b)). See Sweeting v Murat (2013) 221 CA4th 507, 512 (homeless party’s notice of change of address, directing service to rented mailbox, constituted specific provision governing manner of service, and delivery of motion to adult at that address constituted proper personal service). If no specific provision is made, the papers may be left at the party’s residence between 8 a.m. and 6 p.m. with a person of not less than 18 years of age. If no such person can be found, the papers may be served by mail.
If the party’s residence is unknown, papers may be delivered to the court clerk (or the judge if there is no clerk). Papers delivered to the clerk or the judge must be placed in an envelope addressed to the party in care of the clerk or judge. The following information must be included on the back of the envelope: “Service is being made under Code of Civil Procedure section 1011(b) on a party whose residence address is unknown; [Name of party whose residence address is unknown]; and, [Case name and number].
A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.
The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.
Service of Process In Lieu of Personal Delivery for Summons and Complaint
In lieu 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.
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 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Notwithstanding any other law, any person shall be granted access to a gated community for a reasonable period of time for the sole purpose of performing lawful service of process or service of a subpoena upon displaying a current driver’s license or other identification, and one of the following:
(1) A badge or other confirmation that the individual is acting in his or her capacity as a representative of a county sheriff or marshal, or as an investigator employed by an office of the Attorney General, a county counsel, a city attorney, a district attorney, or a public defender.
(2) Evidence of current registration as a process server pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code or of licensure as a private investigator pursuant to Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code.
(b) This section shall only apply to a gated community that is staffed at the time service of process is attempted by a guard or other security personnel assigned to control access to the community.
Service of Process of Summons by Mail
A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.
The notice specified in subdivision (a) shall be in substantially the following form:
(Title of court and cause, with action number, to be inserted by the sender prior to mailing)
To: (Here state the name of the person to be served.)
This summons is served pursuant to Section 415.30 of the California Code of Civil Procedure. Failure to complete this form and return it to the sender within 20 days may subject you (or the party on whose behalf you are being served) to liability for the payment of any expenses incurred in serving a summons upon you in any other manner permitted by law. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, this form must be signed in the name of such entity by you or by a person authorized to receive service of process on behalf of such entity. In all other cases, this form must be signed by you personally or by a person authorized by you to acknowledge receipt of summons. Section 415.30 provides that this summons is deemed served on the date of execution of an acknowledgment of receipt of summons.
Signature of sender
ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
This acknowledges receipt on (insert date) of a copy of the summons and of the complaint at (insert address).
Date: (Date this acknowledgement is executed).
Signature of person acknowledging receipt, with title if acknowledgment is made on behalf of another person.
Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.
If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgement form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses whether or not he is otherwise entitled to recover his costs in the action.
A notice or acknowledgment of receipt in form approved by the Judicial Council is deemed to comply with this section.
Service of Process for Out-of-State Service
A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.
Service of Process by Publication
A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:
(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.
(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.
(b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.
(c) Service of a summons in this manner is deemed complete as provided in Section 6064 of the Government Code.
(d) Notwithstanding an order for publication of the summons, a summons may be served in another manner authorized by this chapter, in which event the service shall supersede any published summons.
(e) As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require that a search be conducted of public databases where access by a registered process server to residential addresses is prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles.
Service of Process on a Business
A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Service of a summons pursuant to this section is not valid for a corporation with a registered agent for service of process listed with the Secretary of State.
Service of Process by Personal Service within the State of California
A summons may be served by personal delivery of a copy of the summons and petition to the respondent. Service made in this manner is deemed complete at the time of delivery. The process server is not required to identify himself or herself to the person being served or disclose the nature of the documents being delivered (See Sorrell v Superior Court (1946) 73 CA2d 194, 201)
“Personal delivery” usually requires actual physical delivery of the summons and petition by the process server to the person served while in each other’s presence. (See Sternbeck v Buck (1957) 148 CA2d 829, 832.) Actual delivery is not necessary, however, when the person to be served is in physical proximity to the process server but refuses to accept delivery. After the process server reasonably attempts to make actual delivery, the papers should be left in as close proximity to the person as is feasible under the circumstances, and the respondent should be made aware of their location. The process server should also attempt to inform the person served of the nature of the documents.
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