As a general rule, anything that gets filed with the court must also be served on all parties. The reverse, however, is not always true. For example, discovery documents do not get filed with the court, but they must be served on all parties in an action. In order for service to be effective and valid, the person performing the serve must be 18 years of age or older and not a party to the action.
Sometimes a registered process server will be used, sometimes electronic service, and other times service will be by mail or other means. Some firms have their own in-house office services personnel who double as couriers and process servers.
Here, we will review the best practices and methods of service most commonly employed in civil matters.
PERSONAL SERVICE – For initial case documents (summons, complaint, etc.), service on a named party can only be accomplished via personal service, substituted service, notice and acknowledgment of receipt, or service by publication. If service is on a named party outside of California, U.S. Mail service with return receipt can be used (Code Civ. Proc., § 415.40).
For service of documents other than the summons and complaint, permitted methods of service include: personal service; service by U.S. Mail; facsimile or electronic service; and, express mail/overnight delivery.
SUBSTITUTED SERVICE – For a summons and complaint, the papers are left with someone at the party’s residence, at least 18 years old, who lives there, or at their place of business with someone who appears to be in charge and at least 18 years old.
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, you can usually use this method. It is primarily used for the summons and complaint/petition (in civil cases or family law cases).
SERVICE BY MAIL – Until the last three years or so, service by mail of pleadings and discovery, as well as various court documents and forms, was the most common form of service in the legal industry. This is accomplished by placing the documents in a properly addressed, postage-paid envelope for delivery by the U.S. Postal Service.
EXPRESS/OVERNIGHT MAIL – Accomplished using U.S. Postal Service Express Mail, or other overnight delivery/courier services such as UPS, FedEx, DHL, Golden State Overnight, etc.
ELECTRONIC/FAX SERVICE – Accomplished using delivery via email or facsimile machine transmission.
SERVICE BY PUBLICATION – Permission from the court must be obtained before attempting to serve via publication, and all other methods of service must be exhausted. A Declaration of Due Diligence detailing all attempts at service is required to be filed with the court. If the court grants the order for service by publication, the Notice, Summons, or document to be published is then sent to a newspaper of general circulation in the area to run for a specific number of times in a designated period. The newspaper will then provide Proof of Publication, which must be filed with the court.
Proofs of Service
Proofs of service must be completed for any document that is filed with the court and/or served on the parties in a case. The Proof of Service can be a Judicial Council form, or a pleading generated by your office. This document is signed under penalty of perjury attesting to the truth of the information, the method of service used, and the date and place where service was performed.
Pursuant to California Code of Civil Procedure section 1013(d), an UNSIGNED copy of the Proof of Service is served with the copy of the document being served. Once the document has been served, the original Proof of Service can be signed. Documents being filed with the court must be accompanied by a signed Proof of Service; therefore, complete the service first, then sign the Proof of Service, attach it to the document, and file it with the court.
It is important to remember that the date on the Proof of Service is the operative date when calculating deadlines for calendaring. If the document being served is signed on January 12, 2024, but the Proof of Service is dated January 13, 2024, then the date on the Proof of Service should be used for docketing purposes.
Categorized in: Legal Procedure
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