California Service of Process

image alt text
Mark CappelSep 30, 2010
Key Takeaways:
  • Personal service of process is preferred by California courts.
  • Substitute service of process is allowed if personal service fails.
  • Plaintiffs must explain to the court how service of process was completed.
What are California's service of process rules?

Citibank charged off my credit card debt of $8500. Now a collection/law firm is telling me that they were hired by Citi to collect the whole amount or a sum of 75 cents/dollar. I am uncollectible and I told them so. They refuse to negotiate below the 75cents/$ even though Citi themselves had been willing to do 45cents/$ with me. This firm does not respond to letters or phone calls. They have hung up twice. They told me I had been served on July 17 but I have not been served personally or by mail. Am I correct that in California the process server must leave the papers with me or a member of my household (I live alone) and if by the latter method, it must be followed up with a letter. The papers cannot just be taped to my door or handed to a neighbor?

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.

Negotiating the Debt

See the Bills.com resource Debt Negotiation and Settlement Advice to learn tips and tactics for negotiating debt with collection agents.

I hope this information helps you Find. Learn & Save.

Best,

Bill

Bills.com

10 Comments

LLily, Jan, 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
BBill, Jan, 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.
LLily, Jan, 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.
BBill, Jan, 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.
AAnonymous, Nov, 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?
BBill, Nov, 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.