Service of Process in EVICTION lawsuits
Learn about Service of Process in Eviction Lawsuits.
Service of Process
in eviciton lawsuits
What is Service of Process in eviction lawsuits?
“Service of Process” refers to the legal process of notifying a person or business that a lawsuit has been filed against them. The Due Process Clause of the United States Constitution requires notice of any court proceeding against a defendant to have any legal effect. The defendant must receive a copy of the court summons (form SUM-130) and the complaint in order to know what is being alleged. Collectively these papers are called process.
Each State has their own laws regarding service of process, and in California the rules regarding service of process can be found in CCP §413.10 – §417.4.
In the eviction process, the manner in which a defendant is served with papers is as with all other lawsuits in California. However, the defendant’s time to respond is significantly shortened, from 30 days to as little as 5 days, depending on the manner in which they were served.
How is Service of Process in Eviction lawsuits completed?
There are three manners in which service of process is typically completed: 1) personal service, 2) substitute service, or 3) post-and-mail. Depending on the manner, the defendant’s time to respond will vary, from five days to up to 15 days.
1. personal service
Personal service is done when the defendant is given the process papers personally. Service is complete when the papers are given to the defendant. If a defendant refuses to accept the papers, a process server can leave the papers near the defendant (close as possible) after identifying him/herself as a process server and telling the defendant that he/she is being served with process.
Defendants who are served personally have 5 days to respond after receiving the papers.
2. substitute service
When personal service cannot be completed, even after due diligence, a process server can use substitute service. Substitute service can be done through one of three scenarios:
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- Leave the process papers at the home of the defendant, with someone 18 years or older;
- Leave the process papers at the usual place of business during the usual business hours, with someone 18 years or older, and appears to be in-charge; or
- Leave the process papers at the usual mailing address of the person being served, in the presence of someone 18 years or older.
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After leaving the process papers, the plaintiff must then mail (via first class, postage paid), the defendant a copy of the complaint and summons to the same address. Service is deemed complete 10 days after the date of mailing.
The defendant will have 5-days to respond after the date service is completed.
When filing papers with the court, a declaration (or affidavit) of due diligence in attempting personal service first must be made, and a separate declaration (or affidavit) showing that time and place the copy of the summons and complain was mailed must, also, be made.
3. Post-and-Mail
When personal or substitute service cannot be made (because no one over 18 can be located), a plaintiff may use the post-and-mail method. In order to use this method, the plaintiff must first petition the court using an ex-parte motion. A declaration (or affidavit) stating that the plaintiff is unable to serve the defendant using reasonable diligence and that a cause-of-action against the defendant exists.
Using this manner, the plaintiff would post the complaint and summons in a conspicuous place and then mail (via first class, postage paid), the defendant a copy of the complaint and summons. Serice is complete 10 days after posting AND mailing, whichever is later. (Even with a court order, the plaintiff can still pursue personal service at the same time.)
The defendant will have 5-days to respond after the date service is completed.
When filing papers with the court, a declaration (or affidavit), from the person who posted at the premises, showing the time and place of the posting, and a separate declaration (or affidavit) showing the time and place the copy of the summons and complaint was mailed.
What is “proof of service”?
The person who serves the process papers on the defendant is known as the process server. The process server must provide proper documentation that the Service of Process has been completed.
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- Proof of Service of Summons – (form POS-010)
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Why use a Registered Process Server?
A Registered Process Server (RPS) is someone who is bonded with the County in which he or she is serving process papers. Although anyone who is 18 years or older can serve (as long as it is not more than 10 per year), it is recommend that a RPS be employed.
The main reason to use a RPS is that service of process is presumed proper if done by an RPS. If an issue about the process arises, the burden of proof is on the defendant to prove improper service.
Are the Rules for Service of 3-Day Notice different?
The San Jose Eviction Process begin with a 3-Day Notice to Pay or Quit (see, “How to Write a 3-Day Notice“). The rules for service of a 3-day notice are the same as those for a summons (see above). However, there are several differences to note.
First, when serving a 3-day notice to pay or quit, the standard does not require due diligence before use of a substitute method of service. The landlord or agent can try personal service once, then serve by a substitute method in the next instance.
Second, only one tenant (if there are multiple named tenants), needs to be served for the notice requirement to be satisfied. But in a weird twist in the law, if there are any subtenants on the premises, each subtenant must be served individually to satisfy the notice requirement.
Third, it is NOT recommended that a RPS serve a 3-day notice. Unlike the Service of Process, service of a 3-day notice can be done by the landlord him or herself or an agent. If the relationship is non-adversarial, a 3-day notice can be seen as a reminder and not a start to legal proceedings.
Lastly, there is no official Proof of Service form that is needed. Any form that states the who, what, when, where, and how can do.