Bill's Answer:
Answered by
Mark Cappel
You are referring to California Code of Civil Procedure sections 412.10-412.30, 415.10-415.95, and 684.210-684.220.
Until 1969 in California, if a plaintiff did not have a process server serve a summons and complaint on the defendant personally, there was no service at all.
After 1969, substitute service was allowed if a copy of the summons could not be delivered personally with reasonable diligence. Substitute service is customarily certified mail to the defendant’s street address (PO boxes are not allowed) plus first-class mail as well. If the street address of the defendant is unknown, then constructive service is allowed. Constructive service can be public notice (such as an ad in an area newspaper), posting a notice on the defendant’s property, registered mail, or some other notice "served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court."
A plaintiff in a California court must provide a document similar to SC 104, which is a sworn statement explaining to the court when, how, and to whom the complaint was served. Failure to do so, or falsifying a record of the service may result in a dismissal of the case or sanctions on the plaintiff's attorney.
See the California Courts Self-Help page Service of Process and SC 104b: What is Proof of Service? for general information about California service of process rules.
For readers in other states, search your state government’s Web site to learn the civil procedure statutes appropriate for residents in your state. All states follow the same basic rule -- notice must be given to the defendant -- but the details of how this rule is implemented in each state vary.
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Bill
Lily A.
Yorba Linda, CA | January 17, 2012
Yorba Linda, CA | January 17, 2012
Dear Bills.com,
I have a default judgement against me from Oct 2006. I didn't find out about it until I was renting an apartment and the leasing office showed me a copy of my credit report in Dec 2008. I called the legal clinic and they told me that I had 180 days or 2 years from the time the summons was served. So in other words I couldnt do anything about it. Fastforward Dec 2011 I get a letter from the plaintiff that sued me (car financing company) saying that I owe $2500 + 10% compount interest and to contact them. I paid a lawyer online to guide me. He suggested since I was not located at the place where the summons was left to file a motion to vacate default judgement.
I looked up the court record of how I was served. The paper says that "I" was served personally! I wasn't even in the state, I was living in Florida. I filed a motion to vacate as the lawyer adviced. Today 1/17/2012 was my court date. I brought my license from Florida to show the judge that I was not living at the house where the summons was left, that I was living in Florida. My Florida license was issued to me 3 months prior from "supposedly" getting served. The judge didnt want to hear it. He kept saying that the case was 6 years old and he kept on repeating to me that the company that served me was a "professional service." In other words calling me a liar. He didnt want to see my license or the dates or anything! the judgement still stands. What are my options PLEASE HELP!
-Lily
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Bills.com
January 22, 2012
January 22, 2012
Hire a lawyer in the city or town where the court is located, and ask your lawyer to file a motion to vacate the judgment. I realize my advice may sound familiar, but some judges become frustrated by self-represented clients who may not present their case the way the judge wants or expects.
A driver's license from another state is one piece of the evidence puzzle you may need to present to the judge to show you were not served personally. You may need to show utility bills, phone records, and affidavits from people who saw you in another state on the date you were allegedly served. If it is any consolation, you are far from the first person to contact Bills.com stating that a process server, well, lied about serving them personally. It is difficult to prove a negative, but in your case it should be relatively easy to present evidence you were far, far away from the place the process server swears you were.
A driver's license from another state is one piece of the evidence puzzle you may need to present to the judge to show you were not served personally. You may need to show utility bills, phone records, and affidavits from people who saw you in another state on the date you were allegedly served. If it is any consolation, you are far from the first person to contact Bills.com stating that a process server, well, lied about serving them personally. It is difficult to prove a negative, but in your case it should be relatively easy to present evidence you were far, far away from the place the process server swears you were.
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Lily A.
Yorba Linda, CA | January 23, 2012
Yorba Linda, CA | January 23, 2012
I tried contacting a few lawyers and they want me to file for bankruptcy, they are not getting the fact that I want to appeal the judges denial to vacate default judgment that happened on 1/17/2012.
Can I appeal? I called the small claims adviser and told me that I have ten days from the time I went to court, is this true? I guess I want to know if I can fight this and appeal the judge's decision to deny my motion to vacate. I'm NOT lying about not being served, I was NOT served, and I wasn't even in the state when all this happened. What options do I have? I've requested bank statements from 2006 in Florida and in the process of trying to obtain a copy of the lease. I have lawyers saying bankruptcy, and the one lawyer I did like that wanted to go forward and appeal isn't calling me back. What kind of lawyer do I need for this matter? Because I have been looking under consumer lawyers.
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Bills.com
January 23, 2012
January 23, 2012
In California, a person may appeal a small claims decision, but I read conflicting information regarding the circumstances for a motion to vacate. A consumer lawyer is a good choice, and another would be a lawyer who specializes in appealing civil cases.
A lawyer explains and interprets the law, and is also a client's counselor. The lawyers recommending bankruptcy may be following the quote attributed to Abraham Maslow, "If the only tool you have is a hammer you tend to see every problem as a nail." They may see bankruptcy as the universal solution to consumer debt. On the other hand, the bankruptcy recommenders may weigh the cost of appeal and its chance of success vs. the cost of a bankruptcy and its almost certain success in ridding you of the debt liability. I cannot say for certain why you were steered in favor of bankruptcy, and I would recommend you ask each lawyer why he or she thinks it is right for you.
A lawyer explains and interprets the law, and is also a client's counselor. The lawyers recommending bankruptcy may be following the quote attributed to Abraham Maslow, "If the only tool you have is a hammer you tend to see every problem as a nail." They may see bankruptcy as the universal solution to consumer debt. On the other hand, the bankruptcy recommenders may weigh the cost of appeal and its chance of success vs. the cost of a bankruptcy and its almost certain success in ridding you of the debt liability. I cannot say for certain why you were steered in favor of bankruptcy, and I would recommend you ask each lawyer why he or she thinks it is right for you.
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November 17, 2011
I am over seas and my wife has filed for divorce. She is using a free lawyer from the county court who says I MUST give my address so I can be served. I have asked that the papers be sent to someone I know who will serve me and sign and return the proof of service. The attorney won't agree to that. I don't want my address known, but I do want the divorce to move forward. Is my suggestion really not workable? If not what other option is there?
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Bills.com
November 17, 2011
November 17, 2011
I am not surprised the opposing lawyer objected to your suggestion. You were, in effect, asking the opposing lawyer to give service of process with a fatal defect.
Consult with a family lawyer in your soon-to-be-ex-spouse's state, sign a fee agreement with him or her, and ask him or her to contact the opposing lawyer. Your lawyer will act as your agent and receive the service of process.
Consult with a family lawyer in your soon-to-be-ex-spouse's state, sign a fee agreement with him or her, and ask him or her to contact the opposing lawyer. Your lawyer will act as your agent and receive the service of process.
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Sean T.
Murrieta, CA | November 02, 2011
Murrieta, CA | November 02, 2011
So, if I read the CCP properly, a summons and complaint may NOT be served via certified mail, to a post-office box. Is this true? I did not specifically find that under 415 et seq. Thank you!
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Bills.com
November 02, 2011
November 02, 2011
Under California CCP 415.20. (a), substituted service of process may not be to a USPS PO box.
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Sean T.
Murrieta, CA | November 02, 2011
Murrieta, CA | November 02, 2011
What if the case falls under CCP 1962.7, which defaults to the provisions of CCP 1013 in my case. There is nothing there that says service cannot be accomplished by way of certified mailing to a USPS PO Box.
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Bills.com
November 02, 2011
November 02, 2011
Your question leads straight into a gray area. I can find no California case law directly on point. In general, notice procedures must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v. Central Hanover Trust Co. 339 U.S. 306) If you can argue that a USPS post office box is the best way to give notice to the other party, or you have a waiver from the other party that states they consent to your using the PO box, then using that address will be fine. However, I hasten to add that my research was cursory, and recommend you consult a lawyer with civil litigation experience for a more thorough review of applicable case law.
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Roger U.
San Francisco, CA | February 23, 2011
San Francisco, CA | February 23, 2011
A collection firm hired a process server. How can I prove that I was NOT served at my residence? And even if I was not at the residence, doesn't the creditor have to MAIL me the papers? And what must I do first before filing a motion to set aside the default judgment (credit card debt). Do I need an attorney to file this? If I prove service of process fraud, does the creditor still have a chance to collect or is the entire case dismissed?
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Bills.com
February 23, 2011
February 23, 2011
Consult with a lawyer about a "notice of motion to quash service of summons," which is under California Civil Procedure Section 418.10-418.11.
If the lawyer is complicit in the defective service of process, the case can be dismissed and sanctions filed against the lawyer.
If the lawyer is complicit in the defective service of process, the case can be dismissed and sanctions filed against the lawyer.
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Richard B.
Tarzana, CA | May 11, 2011
Tarzana, CA | May 11, 2011
Regarding "If the lawyer is complicit in the defective service of process, the case can be dismissed and sanctions filed against the lawyer", can you tell us what section or case law or other authority that is under? I am in the middle of a situation involving flagrantly defective service, and, although I've found lots of information on quashing service, I can't find information specifically on how to get a case dismissed on those grounds. Thank you!
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Bills.com
May 12, 2011
May 12, 2011
You are asking about two different issues and sections of California law. First, deal with the defective service of process. Once that is established, then marshal your evidence for your complaint to the California Bar against the lawyer.
See California Code Of Civil Procedure, Part 2, Title 5., Chapter 4. Service Of Summons, Sections 413 Through 418 to read the California statutes on this subject. Consult with a California lawyer who has civil litigation experience to learn how to file a motion to dismiss.
See California Code Of Civil Procedure, Part 2, Title 5., Chapter 4. Service Of Summons, Sections 413 Through 418 to read the California statutes on this subject. Consult with a California lawyer who has civil litigation experience to learn how to file a motion to dismiss.
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Richard U.
Santa Clara, CA | May 12, 2011
Santa Clara, CA | May 12, 2011
Can anyone tell me what is needed to PROVE defective (or non-existent) service?
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Bills.com
May 12, 2011
May 12, 2011
Before I answer your question allow me to tell you a story: I walked into a bar and told the bartender, "I shook hands with the Super Bowl MVP." The bartender replied, "Prove it!" So I showed him a picture taken on my phone of me shaking hands with the MVP, then I showed him a YouTube video of an ESPN story showing me shaking hands with the MVP, and I showed him the MVP's autograph with the words, "To my friend Bill, and thanks for all of the financial advice." Those three pieces of physical evidence, plus my statement are convincing evidence, and it is safe to say I really did shake hands with the Super Bowl MVP.
My buddy walks into the bar and tells the bartender, "I shook hands with the Super Bowl MVP." The bartender replies, "Prove it!" My buddy has no picture of the event, no video, and no signature. In other words, there is no evidence other than my buddy's statement the handshake occurred. As a result, the bartender says, "We don't listen to liars in my bar, get out and don't come back until you can prove what you say!"
Back to your question. You cannot prove defective service of process any more than you can't prove my buddy never shook the Super Bowl MVP's hand. You can, through examining the process server, learn what steps he or she took and if these steps followed the law. In other words, you can raise a reasonable doubt the service of process never occurred because if it did not, there is no evidence it did. This is Logic 101: You cannot prove a negative. If there is no evidence the event took place, chances are it never did.
If the process server cannot provide the evidence the service of process took place, the judge will act like the angry bartender in my story above, and throw the case out of his or her court.
My buddy walks into the bar and tells the bartender, "I shook hands with the Super Bowl MVP." The bartender replies, "Prove it!" My buddy has no picture of the event, no video, and no signature. In other words, there is no evidence other than my buddy's statement the handshake occurred. As a result, the bartender says, "We don't listen to liars in my bar, get out and don't come back until you can prove what you say!"
Back to your question. You cannot prove defective service of process any more than you can't prove my buddy never shook the Super Bowl MVP's hand. You can, through examining the process server, learn what steps he or she took and if these steps followed the law. In other words, you can raise a reasonable doubt the service of process never occurred because if it did not, there is no evidence it did. This is Logic 101: You cannot prove a negative. If there is no evidence the event took place, chances are it never did.
If the process server cannot provide the evidence the service of process took place, the judge will act like the angry bartender in my story above, and throw the case out of his or her court.
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Richard B.
Tarzana, CA | May 13, 2011
Tarzana, CA | May 13, 2011
In my case, I was able to provide documentary evidence that I was miles away from where the process server claimed to have served me, and so the judge quashed the service and vacated the default. Now, a month later, the plaintiff's lawyer has filed a new proof of service even though I still have never been served. I'm sure I can get this service quashed like the previous one, but I also want to put an end to this and get the case dismissed with prejudice, and I don't know how to request that on the basis of defective or fraudulent service. And I cannot afford to hire a lawyer.
Can you point me to the appropriate statute or other authority regarding dismissing cases due to defective service? (I found, in the code you referred to in your above reply, statutes on dismissing a case on the ground of inconvenient forum, or on the ground of lack of service within three years of commencement of the action, but I couldn't find anything about dismissing a case on the ground of defective or fraudulent service.)
Thank you!
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Bills.com
May 14, 2011
May 14, 2011
Call your county bar association and ask for the name of the organization that provides no-cost legal services for people with no or low income. Make an appointment with that organization, and bring all of the documents regarding your dealings with the court and the creditor in question. The lawyer you meet will help you write a motion to dismiss based on the plaintiff failing to follow California's service of process statutes.
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Lily A.
Yorba Linda, CA | January 17, 2012
Yorba Linda, CA | January 17, 2012
Dear Richard,
I was reading your post. What did you show the judge for the judge to side with you? I had court today and I tried to show the judge my license that was issued to me 3 months prior to me supposedly getting served. I was in a different state, but the judge kept on telling me that this was a PROFESSIONAL server blah blah and he threw out my case. Can I use letters from people? an apartment lease? this is from 2006.
-Lily
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