December 4, 2019|
If you are about to initiate a legal claim – whether that’s filing for divorce or asking a court to grant you custody of your children – you will have to serve notice to the other side to let them know that you are initiating the process. The purpose of this is to give them time to prepare and respond to your upcoming lawsuit.
There are several ways to give notice, but the most popular and easiest way is through your lawyer. Most lawyers have professional process servers that they use for the specific purpose of delivering court papers and notice to the opposing party.
What is a Process Server?
A process server is an essential part of the legal process. They can perform a variety of tasks, including filing papers and retrieving documents from the court. However, their main job is serving legal documents.
To “serve” a document, the process server presents the legal document to a person involved in the court case. After the process server has delivered the papers, they must offer proof of service to the court that they were delivered.
In California, a process server can be an individual, or they can work for a company. There is no official training. The main requirements are that the process server is over the age of 18 and is not a party to the lawsuit. The process server does have to register with the county they live in if they serve more than ten documents a year.
What is a Process Server Allowed to Do?
Sometimes, the person the process server is giving the document to does not want to receive notice. They may believe that if they can avoid physically touching the document that the lawsuit may not proceed, and they won’t need to appear in court. However, in California, this is not the case. There are several steps the process server can take if the person who is being served is attempting to avoid them.
Personal service is when a person not involved in the case physically delivers the documents to the person being served. This is the most reliable form of service because the process server must verbally identify the person being served and they must physically hand the person the papers while informing them of their contents.
This type of service is used if the process server can show several failed attempts to deliver via personal service. If this occurs, the process server can leave the documents with someone else who is over 18.
This person must either live at the residence if the document is being served at a personal address or they must appear to be in charge if it is at a business address. The process server will also need to mail the papers to the address and fill out additional paperwork with the court to show that they could not personally serve the person.
Service by Mail
Service by mail happens when someone not involved with the case mails the notice to the person being served. The documents will be sent to either a home or business address, depending on who is being served. This form of service is not the most reliable because it is impossible for the court to know if and when the document was received.
Sometimes the opposing side knows that they are going to be served and will cooperate. This means that the process server can mail the documents and the other side agrees that they will sign to acknowledge that they have received them. This happens frequently in family law and civil cases, often with the service going straight to the lawyers representing the other party.
Other Options for the Process Server
The process server may have additional options if none of the above types of service work. These alternatives have more specific rules and may only apply to certain types of cases.
- Service by posting on the premises – Only for eviction cases and they must also mail a copy.
- Service by publication – The service notice is published in a newspaper. The court must agree to this form of service.
- Service by posting at the courthouse – The service notice is published in public view at the courthouse. The court must agree to this form of service.
- Service by certified mail – This is only allowed in small claims court and the letter is mailed by the court clerk for a fee.
- If the other party is out of state – This can usually be done by a process server who is not a party to the case. The notice is mailed to their last known address and a return receipt is requested.
- If the other party is out of the country – International laws like the Hague Convention will need to be complied with. It is best to seek legal advice for cases involving international service.
If service isn’t done properly, it can really complicate your legal case. So, it’s always best to err on the side of caution and consult an experienced attorney.