Service of Process/Proof of Service
WHAT DOES IT MEAN TO "SERVE PAPERS"?
- Serving papers on another person is an official handing over of documents. Papers must be "served" on any other person who is involved in the lawsuit or who the law requires get the papers.
- This lets the person(s) in the case know what you are telling the court and what you are asking court to do.
- If the papers are not served in the correct way at the correct time, the court cannot go forward with the case.
- A person is served when they officially receive the papers.
- Papers which start an action (Summons, Petition, Order to Show Cause, etc.) must be filed first and then served on the other person(s).
- Even if the law does not require a particular paper to be served before filing, it is a good idea to file all papers first, and then have them served with the Court's file stamp on them.
- After the papers are served, a Proof of Service form must be filled out and signed by the person who served the papers. The Proof of Service form must be filed with the court.
- Do not serve the papers yourself!
- Any person who is at least 18 years old and not involved in the case may serve papers. The person who serves the papers will have to fill out a Proof of Service form telling what they gave (served) to the other parties.
- There is a slight chance the person who served the papers would have to appear in court and tell how he or she served the papers.
- Choose someone to serve the papers who is able to fill out the form.
- There are companies that serve papers for you as part of their business. These companies charge fees for serving the papers.
- The Sheriff's Office will serve papers for you. The Sheriff's Office charges fees unless the court waived the fee. In a Domestic Violence case, the Sheriff will serve the papers to start the case and also the Order, at no cost. The Sheriff's office will file the Proof of Service for you and give you a copy of the form. If the court allowed you a fee waiver because you are on aid or receiving SSI, the Sheriff's Office will serve the papers to start the case with no charge.
- You may have a friend or relative serve the papers if that person is at least 18 years old and is willing to help you, is able to complete the form to prove service and could appear in court to tell what they served. Remember, you must later file the Proof of Service.
- Any Peace Officer who is present at the scene of alleged domestic violence may serve any already existing Domestic Violence Restraining Order.
- A Peace Officer may issue an order restraining domestic violence, called Emergency Protective Order, to prevent domestic violence when it is not possible for the alleged victim to get to court immediately. The peace officer serves the papers on the other party at that time.
HOW ARE PAPERS SERVED?
Papers may be served in one of the following ways, depending on the circumstances or type of papers to be served:
- Personal Service requires the papers to be hand delivered to the person.
- The papers may be hand delivered to the attorney for that person, or the attorney's secretary, during business hours, if that attorney has already "appeared" in the case.
- Usually an attorney has "appeared" if they have gone into court on the case or filed papers in the case.
- Personal Service is the required way to serve certain papers.
- Personal service is required for all papers which start a case.
- A person is served as soon as the person is handed the papers.
- Substituted Service may be used if personal service has not been successful after several attempts to serve the person.
- For Substituted Service, copies of the papers are left at the place of residence (home), or normal place of business of the person to be served.
- The papers must be left with a person who is at least 18 years old. The person given the papers must live in the same home or be the person in charge at the place of business.
- The person given the papers must be told what the papers are about and who they are for.
- Do not leave the papers yourself.
- After leaving the papers, the person serving the papers must also mail a copy of them to the party to be served, at the same address where the papers were left.
- Do not mail the papers yourself.
- The copies must be sent by first-class mail, with enough postage (stamps) to get the envelope delivered.
- The party is considered served ten days after the copies are mailed.
- The person who made the efforts to serve the party in person must write a Declaration of Due Diligence (under oath) to file with the Court.
- The Declaration of Due Diligence must tell, in detail, what efforts they made to serve the party in person.
- This Declaration must be filed along with the Proof of Service also signed by the person who served the papers.
- Service by Mail is used in some cases. Papers may be served by mailing them to the person to be served. There are special requirements for this kind of service.
- The person serving the papers puts the documents to be served into an envelope, addressed to the party to be served and sends them by first-class mail.
- Do not mail the papers yourself.
- The person mailing the papers also includes a copy of the Proof of Service form. The Proof of Service form will be complete except for the signature.
- Service by mail is permitted for all papers if the party to be served lives outside California.
- In these circumstances the mailing must be by Registered or Certified Mail and must have the Return Receipt Requested form attached and filled out.
- The signed Return Receipt Requested form must be filed with the court along with the form which states how the papers were served (Proof of Service).
- If the party to be served is not in California, the party is considered served by mail ten days after the papers are mailed.
- Note: In practice it is better to have the person personally served even outside California. If the party to be served by mail does not sign the Return Receipt Requested form, you do not have good service.
- Notice and Acknowledgement of Receipt is another form of service by mail acceptable for original papers.
- Two copies of a form called Notice and Acknowledgment of Receipt must be included with all of the papers sent to the other party.
- The person sending the papers must also include a self-addressed, stamped envelope.
- The "Notice and Acknowledgment of Receipt" must name the person who is being served:
It must be dated and signed by the sender:
Dated: ........................... (Signature of Sender)
- Do not send the Notice and Acknowledgment of Receipt yourself.
- The sender must list the papers which are being served. For example:
ACKNOWLEDGMENT OF RECEIPT
This acknowledges receipt of: (to be completed by sender before mailing)
1. A copy of the summons and of the complaint
2. A copy of the summons and of the Petition (Marriage) and:
Blank Confidential Counseling Statement (Marriage)
Order to Show Cause (Marriage)
Blank Responsive Declaration
Blank Financial Declaration
other (specify) Blank Response (Marriage); completed Income and Expense Declaration.
- If the person being served signs, dates and returns the form, the papers have been officially served.
- Notice that there are two lines to be dated, one line to be signed and one line to print or type the name of the party signing and the name of person served (if different):
(To be completed by recipient) Date of Receipt ................................................ (Signature of person acknowledging receipt etc.) Date this form is signed: ........................................ (Type or print your name and name of entity, if any, on behalf, etc.)
- If the form is returned to the sender, the party is served on the date the "Notice and Acknowledgment of Receipt" form was signed.
- If the party to be served does not return the requested "Notice and Receipt" form, or does not sign the form, the service is not complete and some other way of serving that party will be necessary.
- Service by mail is also permitted for most papers to be served on a party if that party has already filed papers in the action.
- The address for service by mail is the address that party put at the top of the papers they filed.
- If an attorney for a party has already "appeared" in a case, the papers should be sent to that attorney.
- If you are not certain that the attorney is involved in the case it would be best to serve both the other person AND "their attorney."
- After a Judgment in the case, Personal Service on the party is usually required again.
- A person is served by mail five days after the papers are mailed and both the person sending the papers and to person to receive the papers are in California.
- A person is served by mail ten days after the papers are mailed if either the person mailing or the person receiving the papers is outside California.
- Service by Publication is a process of putting an official notice in a newspaper. This is a very unusual method of serving papers and is only permitted after the court gives an order permitting service in this way.
- Before using this form of service, the person who wants the papers served must have tried, in all other reasonable ways, to locate the person and give them the papers.
- To get the Order For Publication, the person wishing to use this method must file an Application For Order For Publication of Summons along with a statement Declaration of Due Diligence.
- A Declaration of Due Diligence is a statement of the efforts that have already been made to get the other party served.
- You should also tell the judge all that you know about where the other party might be.
- The Court will usually order service by publication if you can show that the party cannot be found despite very strong efforts to find them.
- Even if you know where the other party is living, the court will sometimes order service by publication if you show that the other party is actively avoiding being served.
- The court will consider the matter and if the judge believes "Service By Publication" should be permitted, the judge will order the notice to be published in a newspaper the judge names in the order.
- The newspaper named will be one the judge thinks the one most likely to give actual notice to the party to be served.
- After the papers have been published in that newspaper for the number of days or weeks ordered by the judge, the party is considered to be legally served.
- The court will require a sworn statement from the newspaper that the "publication" has been made according to the judge's order.
- The sworn statement will be on the form for Proof of Service and should be provided by the newspaper.
- Appearance, Stipulation and Waiver
This is a way a party can tell the court they know about a law case even if they did not receive any other official notice (service). This form is usually used if the parties have reached a complete agreement. If this form is filed, there is no need to prove the service of a Summons and Petition nor with any other previously filed papers.
- The Filing of a Response (or Answer)
It is not necessary to prove that you have formally served the Summons and Petition (or Complaint) if the other party files a Response (or Answer). By filing the Response (or Answer) the other party shows that they know about the legal action and agrees to the Court hearing the case.
- A General Appearance
A General Appearance acts like the service of process because the other party, or their attorney, comes into court or files papers with the court in a way that shows consent to the court hearing the matters in the law case.
- In this situation the other party waives their right to object to the way they were told about the case or the court that will hear the case. (Note: if the person makes a "Special Appearance" to object to the court hearing the case, the person is not waiving their right to proper service of papers.)
- The other person does not waive their right to object to the orders you request.