California Partition Law Blog
Service of process is an important aspect of every lawsuit filed in California. If a defendant is not served and thus does not receive notice of a lawsuit, then any judgment entered against them is void, and the plaintiff will have to begin the litigation process all over again.
While service of process can be an easy affair when the locations of the defendant(s) are known, the situation becomes much more difficult when one or more parties don’t have a set address, or perhaps do not want to be found.
At that juncture, service by publication may be available as a last resort. But litigants must take care to realize that service by publication is not automatic, and cannot be attempted from the outset. Instead, set statutory rules need to be followed before this method of service may be authorized by the court.
What is service of process?
Service of process is the formal term for ensuring that the Defendant(s) to a lawsuit have notice of its commencement. A plaintiff cannot just file a lawsuit and call it a day. They must take affirmative steps to apprise the defendants of their action, otherwise the court cannot begin to consider the case.
The logic behind this is simple. If a defendant fails to appear in a case, then a default may be entered against them. This default leads to a default judgment, which essentially declares the plaintiff the winner of the case. With a valid judgment in hand, the plaintiff can then go and try to collect what they’re owed through employing a sheriff, executing a judgment lien, or garnishing wages among other various remedies.
This is a drastic punishment. As such, the state has a vested interest in ensuring it applies only to those defendants who knew they could have responded but did not. If someone isn’t served, they cannot know an action has been filed against them, under the law.
Thus, achieving service is a necessary step for every plaintiff in the state. But it can be achieved through a variety of methods. Service may be accomplished by means of personal delivery of the summons and complaint to a party (CCP § 415.10), by delivery to the business office or dwelling of certain classes of parties (CCP § 415.20, 416.10-416.90), by mail (with restrictions) (CCP § 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40)
And as a means of last resort, service may also be achieved by publication. (CCP § 415.50.)
What is service by publication?
As noted, service by publication is a last resort. It is not something that can be attempted from the outset. Instead, the standard is that “if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order.” (Watts v. Crawford (1995) 10 Cal.4th 743, 748.)
Once that court order is obtained, the summons will be published in a named newspaper, published in California, that is the “most likely” to give actual notice to the party to be served. (CCP § 415.50.) If, however, the defendant resides or is located outside California, the court can order the summons to be published in a named newspaper in whatever state is most likely to give actual notice to that party.
After the named newspaper is determined, the summons will be published once a week for four consecutive weeks, though the publishing period may be longer if the court thinks it reasonable. (see Gov. Code § 6064.) Additionally, if the defendant’s address is ascertained before this 28-day period, then the court will order that the summons be mailed to that address.
When can you serve someone by publication?
Code of Civil Procedure section 415.50 states that “a summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article…”
Just because service by publication seems like the right approach does not mean a court will order it. Instead, the standard is that the plaintiff must show to the satisfaction of the court in which the action is pending “that the party to be served cannot with reasonable diligence be served in another manner specified,” in the Code of Civil Procedure (Watts, 10 Cal.4th at 748-749.)
Put differently, service by publication presupposes “is employed only after the plaintiff has exhausted all other avenues to discover their whereabouts.” (Perez v. Smith (1993) 19 Cal.App.4th 1595, 1598.)
What is “reasonable diligence” for service by publication?
While the term “reasonable diligence” seems like a lofty standard, it really isn’t that difficult to meet, all things considered.
Instead, “a number of honest attempts to learn the defendant’s whereabouts through inquiry and investigation generally are sufficient.” (Rios v. Singh (2021) 65 Cal.App.5th 871, 880.) Nonetheless, these efforts need to be shown because it’s a general fact that service by publication rarely results in actual notice.
Put another way, “the question is whether the plaintiff took the steps a reasonable person who truly desired to give notice of the action would have taken under the circumstances.” (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 332.)
For example, suppose “Shawn” is filing a quiet title action and wants to serve all “unknown persons” claiming an interest in the property. It probably wouldn’t be enough for Shawn to tell the court he looked around the house for a few minutes.
Instead, he’d probably need to show that he ran a title search and inquired with the local recorder’s office. Only then, after being unable to locate anyone else claiming title to the property, would the court likely be willing to grant his request for service by publication.
How the Lawyers at the Underwood Law Firm Can Help
Achieving service can sometimes be a burdensome experience, especially when one or several defendants are making themselves hard to find. These situations can be stressful, and difficult, especially when the way out is not entirely clear. Fortunately, the lawyers at the Underwood Law Firm specialize in partition actions and solving difficult co-ownership problems through civil litigation, helping good people end bad real estate partnerships. If you have found yourself in one of these situations, then please do not hesitate to contact us today.