(888) 773-4483

We help you stay, When others say MOVE!

The Eviction Complaint Must be Properly Served

 

We wanted to discuss the requirements that MUST be complied with when serving an eviction complaint on a defendant.  We have seen many instances in the past where occupants or tenants were not properly served or were the victims of deliberant attempts to get around service by tricking the court into believing that proper service was completed by the plaintiff.

Following the completion of a foreclosure the bank or new buyer will most likely want the property vacant so it can be sold to a new buyer.  If the bank takes the property back due to there being no bidders at the foreclosure sale they will retain an attorney or law firm to process the eviction procedure.  Most attorneys or law firms that are retained by the banks are ethical enough to make sure the summons and complaint is property served on the appropriate parties.  It is when investor showed up and bought properties and then moved forward with an eviction is where we have observed problems in the past.

We have seen numerous instances where the eviction complaint was not properly served or in the alternative not served at all.  There are only 5 days allowed by court rules to respond to the complaint. If a response is not received within the 5 day period then the defendant can be defaulted and the case will be over and the plaintiff wins.

According to California Code of Civil Procedure Section 415.10 a complaint for unlawful detainer must be served on all defendants. 

The ways to serve a defendant are as follows:

  

Personal Service

 

This is considered the most commonly used procedure to serve a summons and complaint on a defendant.  The primary way that service is effectuated is to:

Have a registered process server travel to where the defendant is located and attempt to serve the defendant the lawsuit.  The process server is required to get the person who is being served to identify themselves and then serve the document to the defendant.  If the person refuses to accept service then at that point the process server is authorized to leave the documents as close as possible to the person being served.  Many times this can be done by dropping the documents on the floor right in front of the person being served.

There are variations available if the person will not agree to identify themselves to the process server.  If the property that is subject to an eviction action is occupied by only one person and the process server has observed only one person coming and going over a period of time from the property then it can be determined that person would be the person to serve.

If the process server in not able to determine that the party is the proper party to be served then the plaintiff would need to go back to court and petition the court for a posting order.

The date of service for personal service is considered to be on the date the documents are handed or dropped at the feet of the person being served.  The 5 day timeframe to respond to the complaint begins the day following service since that day is considered day one of the 5 day period to respond to the complaint.

To access the governing law see California Code of Civil Procedure Section 415.10 in the Resources section of our website

 

  Substituted Service

 

If there are multiple defendants living and residing in the subject property and the process server is not able to serve one of the defendants then service can be effectuated by a process referred to as “Sub-Service”.  One defendant can receive service on behalf of another defendant who resides in the same living unit.  Many defendants believe that this is not considered proper service, but when done properly and reported to the court by filing a proof of Service then this form of service is considered proper service.

If the occupant of the property receives their mail at a private P O Box, not a P O Box at a United States Post Office then service can be made by serving the responsible party at the private P O Box business, which is usually a UPS store or some sort of other business that provides mail Box services as part of their business.  The law is very clear that the person who is served at the mail Box business is accepting service as agent of the defendant.

Substituted service is considered complete on the 10th day following service.  So a person who is served by substituted service is entitled to an additional 5 days to respond to the eviction action.

The requirements are:

 

  • Deliver a copy of the summons and complaint to an adult person residing at the subject property or to the managing person at a private mail box business.
  • Mail a copy of the summons and complaint to the person being served addressed to the subject property.

  

To access the governing law see California Code of Civil Procedure Section 415.20 in the Resources section of our website

 

 

Posting the property by Court Order

 

If the plaintiff’s process served is not able to personally serve the defendant and has attempted at least 3 times to serve over 3 days then the plaintiff can petition the court to “Post the property”.  This option requires a court order and once received the process server simply travels to the property and tapes the summons and complaint on the front door to the property.  If the front door is not accessible then the complaint MUST be posted in a conspicuous place on the property.  The normal procedure is to take a picture of the posted document for use if necessary in court.

The requirements are:

  •  Petition the court for permission to proceed with service by posting the property
  •  Obtain the posting order issued and signed by the judge or a representative of the court
  • Post the property on the front door or if not accessible then in a conspicuous place  by taping or attaching the summons and  complaint along with a copy of the issued court order approving service by posting the property

Substituted service is considered complete on the 10th day following the date posted.  So a person who is served by posting the property is entitled to an additional 5 days to respond to the eviction action.

To access the governing law see California Code of Civil Procedure Section 415.45 in the Resources section of our website

If you have any questions or have been a victim of improper service then call our office to get information necessary for dealing with this type of situations.

 

 

About the author

Leave a Reply


Contact us at (888) 773-4483

For a confidential and informative evaluation.
Serving All Counties in California