As described in our article on American Litigation, the initial step in commencing litigation against someone in the United States is to file a Complaint in the appropriate court and to have the complaint and a summons to appear which is issued by the Court personally delivered to the defendant (“served on the defendant”) which then commences the time period in which the defendant is required to file his or her own pleadings in Court. Failure of the defendant to respond in the requisite time period (usually thirty days) can allow a default to be taken against the defendant.
Some defendants are impossible to locate or actively evade delivery of the complaint and summons, knowing that no default can be taken without such service being accomplished. If the plaintiff’s office is unable to locate the defendant to serve personally, by mail or by any other means of service, there is a final method for service is service by publication. This article described what must be done to obtain approval from the court for service of publication.
The Basic Requirements for Service by Publication:
According to CCP § 415.50(a) “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 and that (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action” or that “(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.”
Proof of Reasonable Diligence
As referenced in the above statute, an affidavit must be prepared by the Plaintiff’s attorney which shows that reasonable attempts have been made to serve the defendant in some other authorized manner. The affidavit showing that reasonable diligence was made to serve the defendant must be prepared by someone with personal knowledge. This may be the plaintiff’s attorney, but would most likely be the investigator or process server used to search for the defendant. The efforts made to find the defendant’s location should be described in the affidavit as well as if any attempts were made to serve the defendant that were evaded.
This would include service by mail (with an acknowledgement of receipt) if the defendant has a known mailing address in California, even if the mailing address is only a PO Box. [Transamerica Title Ins. Co. v. Hendrix (1995) 34 CA 4th 740, 745]
The affidavit must show that the steps taken were the steps “a reasonable person who truly desired to give notice would have taken under the circumstances.” [Donel, Inc. v. Badalian (1978) 87 CA3d 327] An honest attempt must be made to find the defendant before service of publication. This would include speaking with relatives to determine if they are aware of the location of the defendant as well as searching telephone directories in the area that the defendant is believed to be located.
There is a restriction regarding which databases can be searched. According to CCP 415.50(e) “the court may not require that a search be conducted of public databases where access by a registered process server to residential addresses is prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles.”
Courts are not comfortable granting service by publication since such service seldom results in actual notice to the defendant. As such, they can often insist that the plaintiff attempt additional methods to achieve service, e.g. hire investigators, contact ex employers, etc. Some courts are less aggressive in insisting upon extraordinary efforts but at a minimum the plaintiff should seek by means of investigation to locate work and home addresses and seek via process servers to serve the defendant at those locales several times, including at dinner time and after work. Such efforts are reduced to an affidavit prepared for the courts review and consideration. While the court may require continued efforts before allowing service by publication, eventually even the most stringent court will concede that service by publication is justified if efforts remain unsuccessful.
Proof of Cause of Action or Interest in Property
According to CCP 415.50, the affidavit must also show that “(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action” or that “(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.”
This must also be signed by someone who has knowledge of the facts of the case, such as the plaintiff’s lawyer. The affidavit showing reasonable diligence to serve and locate the defendant may be filed as a separately form from this affidavit.
Service via Publication Upon Approval
If the court approves the affidavit, CCP 415.50(b) states that, “The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons.”
CCP 415.50(c) states that “service of a summons in this manner is deemed complete as provided in § 6064 of the Government Code.” Gov. C. § 6064 states that “publication of notice pursuant to this section shall be once a week for four successive weeks….The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day.” The defendant than has thirty days to respond.
Which means that the soonest a default can be taken if service by publication is granted is about sixty days after granted. Once that is achieved, however, should there be no appearance, a default can be taken and, eventually, judgment entered with all the tools of enforcement possible.