A look at hiring a process server.
Laws Pertaining to Process Serving in California
Section 415.20 (b) of the California Civil Code Of Procedure states:
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.
Process servers understand “dwelling house” or “usual place of abode” to mean the actual location where the person is currently living. In practice, it means the person’s official residence or where he or she is currently staying. Most courts seem to consider the “dwelling house” to be where the person is currently staying and the “usual place of abode” to be the person’s permanent residence. For example, a person may live with his parents but be currently away at school in a dormitory. The dormitory would be his dwelling house and his usual place of abode would be his parents’ home. He may return home on vacation and school breaks. He may plan to return home permanently after he finishes school. The same applies to a person currently away for treatment at a medical center, on a business trip, on a vacation or retreat.
The phrase “usual place of business” can also mean different things. A person working every day in an office on 7th Street would have that address as her usual place of business. A doctor, however, might have several different locations as his usual place of business: a hospital, his office, and a mobile unit. A salesman working at different company locations and a teacher working for more than one educational institution might also be able to claim more than one usual place of business.
A person’s “usual mailing address,” with the exception of a U.S.P.S. post office box, may consist of a private mailbox service or any other definite location that he or she uses as a mailing address. The person does not actually have to pick up or receive the mail at this address, but the person must give this address as his or her mailing address. If a process server is directed to send a person’s mail to a specific address, the address can be considered the person’s usual mailing address. The server has no way to verify whether the person is picking up or receiving the mail at that address. To evade creditors, some people will give out a mailing address but never pick the mail up.
A “competent member of the household” refers to any resident of the household, not just family members. The phrase includes full-time live-in nannies, maids, gardeners, friends, and partners. As long as a person resides at the location full time, he or she is considered a member of the household.
The phrase “person apparently in charge” does not mean, as a process server might believe, a manager or officer of the mailing address or business. The word “apparently” is important. For example, if a receptionist will not allow the process server to see anyone else, the receptionist is the highest person in charge that can be served. A clerk who works at a mailbox service may be the only person apparently in charge at the location.
When a complaint is served at a gated community or building where the security guard will not allow entry, the security guard is deemed a competent member of the household and his post the outer bounds of the actual dwelling location. On May 28, 1992, in the case of Robert Bein vs Bechtel-Jochim, the California Court Of Appeals affirmed that a guard gate constitutes part of the dwelling and the guard is a competent member within the dwelling. The court reasoned that when a process server is not permitted to enter the actual residence, the outer bounds of the dwelling place must be considered to extend to the location where his or her progress was arrested.
The meaning of “reasonable diligence” is interpreted differently in different jurisdictions. In general, however, at least three attempts should be made at least eight hours apart. At least two of those attempts should be made at the address where the papers are served. If contact is still unsuccessful, a substituted service made on the fourth attempt is usually considered valid.
The above does not constitute legal advice. It is given as general information only and opinions formed over the years through the experience of investigative agencies providing process serving services. Although the information is believed to be correct, no guarantee is made or implied as to its accuracy.
Sheriffs, marshals, constables, and other sworn peace officers comprise the third category of persons who may serve legal process.
The fourth category is composed of nonregistered or nonlicensed individuals such as friends, relatives, and others.
In many states, including California, a nonregistered individual may serve up to ten legal documents a year as long as the individual is not a party to the action, such as a plaintiff or defendant. When the individual has served the document, he or she must sign an affidavit stating that the paper was served properly. Usually, the affidavit must be signed under penalty of perjury.
Normally, it isn’t a good idea to have a nonprofessional individual serve process because the person usually doesn’t know the rules and laws of process serving or how to properly fill out a proof of service. If either of these conditions applies, the service may be declared invalid and possibly cause the case to be lost or started over. In addition, many people try to evade service, and a professional is more likely to be able to complete service. Finally, process serving can be dangerous, as many people get angry when served and may vent their anger on the process server. Process servers have been beaten up and attacked with weapons, run over by cars, and shot.
In the past, sheriffs, marshals, and constables were considered good choices for serving papers, but that is no longer the case. Few marshals serve papers today, and sheriffs and constables are busy doing other things. Papers may sit for weeks before they are taken out for service. Many people don’t open their door when they see a marshal or sheriff’s uniform. The officer has to walk away and return the papers unserved.
Licensed private investigators sometimes make the best servers; however, not all of them will serve papers, and many believe that they should be paid far more than a registered process server. Others serve so few papers that they may turn an easy service into a difficult one. Others turn every service into an investigation to run up billable hours. However, a good detective agency will have numerous assignments and investigators who can serve papers fast and efficiently for a reasonable fee.
More Information on Choosing a Process Server
You can trust most licensed private investigators to be honest in serving papers.
It is not easy to obtain a license as a private investigator, and if they get caught billing a client for work they didn’t do or committing perjury by saying they served a paper when they didn’t, they can lose their license, which means they’re out of business because a license usually cannot be reinstated. In most states, complaints can be filed against a licensee, and these complaints are investigated. Prospective clients can obtain a record of adjudicated complaints by contacting the state licensing board.
Registered process servers usually know the laws and rules of process serving. For the most part, they are honest, hard workers. In most counties, however, it is easy to register as a process server, as no experience is required, and often there is no licensing body to monitor them. If registration is revoked for some reason, a server can get a friend or relative to register and the server can list himself as an independent contractor working for the new registrant. Since there is no monitoring body for process servers, there is no place for a prospective client to check for complaints or file complaints against a registrant. Often the only thing a client can do against a registered process server is to file a lawsuit and, if a judgment is obtained, to go against the registrant’s bond. However, not all counties or states require a bond, and those that do only require a bond of $2,000 or less.
When looking for a process server, make a careful selection. Don’t use a relative or a friend. If you find a server over the Internet, don’t go by the appearance of the website alone. A person may be a poor website designer and an excellent server, or the opposite. Call the server on the phone and ask questions based on the information in this article. If the server won’t or can’t answer your questions adequately, or refuses to speak with you, go elsewhere. If the server claims to be a licensed private investigator, check out his or her license with the state licensing board and contact the Better Business Bureau to find out if they have any information on him. If possible, don’t use a one-person operation, as he or she may not be able to keep up with the workload or may charge high fees to compensate for a lack of steady work.
When choosing a process server, don’t go by price alone. Expensive servers are not always the best and inexpensive servers are not always the worst. View the entire context; a busy detective agency, for example, may charge less than a small company but do a great job. Before contracting with an individual or company, ask whether there are any additional or incidental fees. Many companies will quote you a low initial fee but tack on a fortune in incidental fees.