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Serving a summons in California by publication

by Stan Burman

Serving a summons in California by publication is the topic of this blog post.

Serving a summons in California by publication is authorized by the provision of Code of Civil Procedure section 415.50 only if the requesting party can meet certain strict requirements. 

Service of a summons in California by publication can also be made in a probate as well as a divorce or other family law case.

I want to stress right now that service by publication is very expensive in fact the cost of service by publication in many cases will equal or exceed $500.00 or more!   The cost of publishing the notice in a legal or “adjudicated” newspaper is one of the biggest drawbacks to service by publication. The cost alone dictates that service by publication should only be considered as a last resort in cases where a defendant or respondent truly cannot be served in any other authorized manner.  If you are considering requesting service by publication you should first consider retaining an experienced “skip tracer” to locate the defendant or respondent as the fee will almost surely be much less than service by publication.

Another negative consequences to serving a summons by publication is that the defendant or respondent may file a motion to vacate any judgment even years after the judgment is entered and they may stand a good chance of having their motion granted if they can show that you failed to exercise reasonable diligence in attempting to locate them, committed perjury in obtaining the publication order or submitted a defective affidavit or declaration.

You must submit an affidavit or declaration under penalty of perjury showing that the defendant or respondent cannot, with reasonable diligence, be served in another authorized manner, that a cause of action exists against such person or that person is a necessary or proper party to the action. See Code of Civil Procedure § 415.50(a)(1). 

Even a verified complaint or petition for dissolution or other family law proceeding is not a substitute for the required affidavit or declaration establishing that a cause of action exists against the defendant or respondent. 

Alternatively you can submit an affidavit or declaration stating that the party to be served has or claims an interest in real or personal property in California that is subject to the court's jurisdiction, or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property. See Code of Civil Procedure § 415.50(a)(2).

Service by publication is the least likely method to give a defendant or respondent actual notice of the proceeding as it basically gives only what is known as "constructive" notice. Thus the “reasonable diligence" required is much more burdensome than that required for substitute service under Code of Civil Procedure § 415.20.

Essentially service by publication is only authorized as a last resort form of service where present the whereabouts of the defendant are unknown and he or she has no known fixed location where service in another authorized manner can be performed.

The California Courts of Appeal have stated that an order permitting service by publication may not rest simply on the alleged "actual ignorance" of the whereabouts of the defendant or respondent. Instead, the courts "necessarily" must require a showing of exhaustive attempts to locate respondent.

Even the fact that a defendant or respondent cannot be physically located does not mean there is no available alternative method of service. For example, where a defendant or respondent has a known post office box, "reasonable diligence" to effect service other than by publication requires attempted Code of Civil Procedure § 415.30 service by mail at the P.O. box; otherwise, an application for published summons is "defective as a matter of law." Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746--though D was unlocatable, P knew D's post office address and that his mail was being picked up there.

And the supporting declaration(s) attesting to the efforts made to locate the defendant or respondent and to effect alternative service must be executed by persons with personal knowledge of the facts such as the process server and/or attorney who conducted the search and submitted to the court in support of an application for an order authorizing service by publication. General allegations and conclusions that the defendant or respondent cannot be found are insufficient. See Transamerica Title Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 742-743--declaration stating "Defendant's address unknown" defective "as a matter of law".

Note that submitting defective reasonable diligence declarations can have serious consequences even if the Court grants the request and orders service by publication.

Unless an affidavit or declaration is submitted demonstrating on personal knowledge that a plaintiff or petitioner exercised the requisite reasonable diligence to locate respondent, a judgment based on published service is void and subject to direct or collateral attack at any time, even years after the judgment has been entered.

The court order authorizing service by publication must direct summons to be published in a named California newspaper most likely to give defendant or respondent actual notice and, if defendant or respondent resides out of state, may also order publication in a named newspaper outside California that is most likely to give actual notice. The court's order must further direct that a copy of the summons, complaint or petition and order for publication "be forthwith mailed" to defendant or respondent if his or her address is ascertained before expiration of the time prescribed for publication. Code of Civil Procedure § 415.50(b);  Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42-43 --selection of Riverside newspaper for publication failed "most likely to give actual notice" standard where Ps admitted D no longer resided in Riverside and received mail elsewhere.

The notice must be published at least once a week for four successive weeks unless the court orders a longer period. Generally, five days should elapse between the successive publication dates.  Code of Civil Procedure § 415.50(b); see Government Code § 6064.

An order for publication does not prevent service of process from being performed in any other manner authorized by law. If alternative service is made during the publication period, published summons is superseded.  Code of Civil Procedure § 415.50(d).

Service by publication is deemed complete, and the 30-day response period commences to run, on the 28th day following the first day of publication (inclusive of the first day).  Code of Civil Procedure § 415.50(c); see Government Code § 6064.

However, the response period can begin sooner if another authorized manner of service is performed in the interim.

Attorneys or parties in California who wish to view more than 300 sample legal documents for California and Federal litigation created by and sold by the author of this blog post can use the link shown below:

www.scribd.com//LegalDocsPro

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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