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After you have filed
your lawsuit and received a trial date, the court issues you the official
Plaintiff's Claim and Order to Defendant papers. You must have these
papers served on your defendants by another person, who must then complete
the Proof of Service form for each defendant. The completed proofs must
then be returned to the court clerk for your case to be heard.
If you have the
court serve a defendant by certified mail, then the return receipt the
court gets back serves as a proof of service.
Anyone 18 years of
age or older and not a party to your lawsuit can serve the papers on the
defendant. This may include a sheriff of the county where the defendant
resides or a private licensed process server. You may also ask the court
to serve the defendant by certified mail.
The 3 ways of
serving a defendant allowed by small claims court are:
Certified mail
Only the court can
serve by certified mail. It is cheap ($8.00), but the success rate is low
because, often times, a defendant refuses to claim the mail or another
person signs for it.
Personal service
Your process server
can give a copy of Plaintiff's Claim and Order to Defendant to the
defendant in person. If the defendant refuses to take the paper in his
hand, then the server may leave a copy in the defendant's immediate
vicinity.
Substituted service
If your process
server cannot give the paper directly to the defendant, then the defendant
can be served in substitution. Your server leaves a copy with a competent
adult member of the defendant's household (related or not) at his
residence, or with a person who is apparently in charge of receiving legal
documents or mail at defendant's primary place of business or employment.
Then the second copy is sent, by first class mail, in an envelope
addressed to the defendant, to the address where the first copy was left.
No. Unlike in a
Superior Court action, you cannot have a small claims defendant served by
posting or by publication in a newspaper.
Your process server
can serve either the company's director, its executive officers (for
example, the CEO, treasurer, president), or its designated agent for
service of process-a person or a company the defendant named to accept
lawsuit papers on its behalf. You can get the name and address of the
agent for service of process by contacting the Secretary of State's office
at 1500 11th Street, 3rd floor, Sacramento,
California 95814, or by accessing their web site at
www.ss.ca.gov.
The law allows you
to serve its directors, officers, managers, or even a teller.
That depends on
whether the defendant can be served directly or by substituted service,
and also on whether or not the defendant resides in Kings County or out.
In county, personal service must be done at least 15 days prior to trial
and substituted service must be done at least 20 days prior to trial. Out
of county, personal service must be completed at least 20 days prior and
substituted service at least 25 days prior to trial.
If none of the
defendants have been served, then you simply return all copies of the
Plaintiff’s Claim and Order to Defendant back to the small claims court
clerk and ask for a later trial date.
If some of your
defendants have been served and the proofs of service on them have been
filed, then you need to ask the court for a postponement of the trial
date. You must send to each of the defendants who had been served a copy
of the completed
Request to Postpone Small Claims Hearing (SC-110) then
submit the original copy of the Request to the court at least 10 days
before the scheduled trial date along with the $10 fee. If your request is
granted, then the court will set another trial date and notify you and the
defendants who had been served. You will also be given copies of the new
Plaintiff’s Claim and Order to Defendant so that you can continue to try
serving those defendants who have not yet been served.
Your process server
must complete and sign the
Proof of Service form (SC-104), indicating
when, how and where the defendant was served. That proof of service must
be received prior to the trial or produced at the time of the trial.
The general rule is
that service of process for a small claims case must be done within the
state. However, you can have a non-resident owner of California real
property, who has no agent for service in California, served by the court
through certified mail ($8.00 per defendant) or by another person leaving
a copy with the defendant directly. Your process server can also serve the
defendant by leaving a copy of the lawsuit papers with an adult member of
the defendant’s household or an adult in charge of receiving legal papers
or mail at the defendant’s primary place of work. The process server must
then mail a second copy to the defendant addressed to where the first copy
was left. (The cost of hiring a process server to serve a non-resident
real property owner defendant will vary.)
Also, a non-resident driver of a motor vehicle involved in an
accident on a California public roadway may be served by serving both the
Director of the California Department of Motor Vehicles and the
non-resident driver by any of the methods described for serving the
non-resident property owner.
These are some
suggestions in helping you locate your defendant:
County or city
business licensing records
Check the County or
City Business Licensing or Fictitious Business License filings for
information on a business defendant. They will give out or confirm the
ownership information.
Secretary of State
Records
All corporations,
limited liability companies (LLC), and limited partnerships (LP) that are
formed or doing business in California must be registered with the office
of the Secretary of State of California. That office is located at 1500 11th
Street, 3rd floor, Sacramento, CA 95814. They do not give out
information over the phone, but they do maintain a web site where the
information you need is available online over the Internet. The address of
their website is
www.ss.ca.gov.
Public real estate
records
If the defendant
owns real property, his name and address will be on file-for public
viewing-with the County Recorder's Office in the county in which the
property is owned. Not all owners list a street address under the MAILING
ADDRESS line on the filing, but one of the properties owned (if there are
multiple ones) will probably be the actual residence of the defendant.
Post office
box records
If the defendant has
left a forwarding address with the U.S. Post Office, then you may send a
request to the post office of the zip code where the defendant/debtor used
to live. Even if you did a directory search on the Internet, you may wish
to do this since some of those web directories may be updated
infrequently.
If the defendant has
a post office box, the Postal Service will give you the defendant's
forwarding address or the street address if you can certify that you are
seeking that information for the sole purpose of serving lawsuit papers.
Pick up a form at the nearest post office and submit it to the post office
where the defendant has a post office box.
If all you have is a Post Office Box number for the defendant, you may
request that the post office, where the box is located, release the street
address of the P.O Box holder to you. You must submit a U.S. Postal
Service information request form along with a certified copy of your
Plaintiff’s Claim and Order to Defendant. Be aware that not all P.O. Box
holders update their street address with the Post Office. If the defendant
has moved since acquiring the P.O. Box, the street address may not be
current.
Department of Motor
Vehicles records
The D.M.V. will not
release residential addresses to litigants and process servers. However,
your insurance company may be able to obtain the information if your suit
involves a car accident.
Credit report
A credit report
includes a debtor's name, address, telephone number, Social Security
number, and date of birth, as well as credit history and possibly
employment history. A credit bureau might provide a copy of the defendants
credit report if you state that you need the information for a legitimate
business purpose, such as collecting a debt, as per Civil Code §
1785.11(a)(3)(F). Experian, Equifax and TransUnion are the three biggest
bureaus.
Private investigator / skip tracing
You
may also attempt a "skip trace", which can be performed through credit
reporting agencies and registered process servers. Look under "credit
agency" and "process serving" in the Yellow Pages to inquire with various
firms that might offer this service. They search public records and other
records that might lead to your defendant/debtor. They do charge a fee,
which is not recoverable as part of your small claims action. Some
private investigators also perform similar services.
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