A copy of the lawsuit along with the summons must be served to the defendants. This is the service of process. Before a court can exercise its jurisdiction over a defendant – before a lawsuit can formally begin, the court must have proof that the defendants have been officially and legally notified of the lawsuit and the defendants need to respond to it. Service of process gives the court personal jurisdiction over the defendants and is necessary to enable the court to impose any legally binding judgment on the defendants. When you file a lawsuit, you must serve a copy of the lawsuit along with the summons to the defendants named in the suit. If the lawsuit is filed in California, the defendants in the lawsuit must be served according to California process serving laws.
A summons identifies all parties in the lawsuit and indicates the court of jurisdiction in which the lawsuit will be tried. It also directs the defendants to respond to the lawsuit within a specified time period. It essentially summons the defendant to appear and defend himself or herself.
When you file a lawsuit, you cannot be the person who will serve the copy of the lawsuit (along with the summons) to the defendants. The service must be done by someone who is not connected to the lawsuit and who is at least 18 years old. You can also hire the services of professional process servers to do this work for you.
Service on Defendants
You can serve the defendants either personally – handing over the papers to the defendant personally or by mailing the papers to the defendants. Personal service can be done anywhere – at the defendant’s home, workplace or anywhere on the street. In a personal service, the process server hands over the papers to the defendant. If the defendant does not accept the papers, the process server needs to only leave the papers on the ground in front of the defendant. The service will be considered as complete whether or not the defendant picks up the papers. If the defendant accepts the papers but destroys them immediately, the service will still be considered as complete. What the defendant does with the papers does not in any way affect the legality of the service. If the defendant is a business entity, the service can be done by serving the registered agent of the company.
Service by Mail
If the defendants are being served by mail, the papers must be mailed to the defendant by an adult who is not connected with the lawsuit. The papers are mailed to the home or mailing address of the defendant. The service will be considered as completed 5 days after the papers have been mailed.
If the process server is unable to personally serve the defendant despite several good faith attempts, the papers can be served through substituted service. In California, the process server must have attempted to serve the defendant at least 3 times before attempting substituted service. The attempts must be made on different days of the week and at different hours when the defendant is likely to be available at the address. If the defendant is not available on any of the attempts, then on the last attempt, the process server can leave the papers with an adult who is available at the address and explain to the person about the papers being served. The process server must also mail a copy of the papers to the defendant at the address where the process server attempted to serve the defendant. The process server must sign a document under penalty of perjury explaining the attempts made by him or her to serve the defendant before the substituted service.
Other Methods of Service
If despite in several good faith attempts but the process server was still not able to serve the defendant, you can file a petition in court to let you serve the defendant by publication of the summons in a newspaper that is circulated in the county where the defendant was last known to have resided. In certain eviction suits, you can apply for service by posting the summons on the premises. In some cases, the court will allow you to serve the defendants by posting the summons at the court house.
Proof of Service
Each court has its own prescribed form for proof of service. The process server must complete and sign the proof of service form. On this form the process serve must provide details of how the service was done, the date and time of service, etc. The complete proof of service must be filed in the court.