Code of Civil Procedure section 415.50 service of a summons
and complaint by publication in California is the topic of this blog post. Code
of Civil Procedure section 415.50 authorizes service by publication but only if
certain strict requirements are met. A
summons and petition in a dissolution (divorce), legal separation or nullity
proceeding in California can also be served by publication.
Service by publication while necessary in some cases is very
expensive, in fact the cost of service by publication in most cases will equal
or exceed $500.00 or more! In fact the
cost is one of the biggest drawbacks to service by publication. As a result 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. Anyone considering requesting
service by publication should 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 disadvantage is that the defendant or respondent may
file a motion to vacate any judgment even years after the judgment is entered
and may stand a good chance of having their motion granted if they can show
that the plaintiff or petitioner failed to exercise reasonable diligence in
attempting to locate them, committed perjury in obtaining the publication order
or submitted a defective affidavit or declaration.
The plaintiff or petitioner 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).
It should be stressed that 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 the plaintiff 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 essentially
imparts only what is known as "constructive" notice. Thus the “reasonable
diligence" required is much more burdensome than that which would allow
for substitute service under Code of Civil Procedure § 415.20.
Essentially section 415.50 authorizes only a last resort
form of service where the whereabouts of the defendant or respondent 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
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 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.
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.
Publication must occur at least once a week for four
successive weeks (unless the court, in its discretion, 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 preclude service in
another authorized manner. 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 may begin sooner if another
authorized manner of service is performed in the interim.
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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
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