California Partition Law Blog
Under Government Code section 26665, a sheriff may serve “all writs, notices, or other legal process issued by superior courts in civil actions…” When someone decides they want to file a lawsuit, getting an experienced lawyer to draft the complaint is only half the battle. It still needs to be filed with the correct court and, most importantly, the complaint must be served on the defendant.
Service, however, can wind up being both stressful and expensive for many litigants. This is particularly the case when the defendant is moving from county to county, or from state to state to avoid being served papers.
In these instances, some plaintiffs come to believe that the matter would be best left to the Sheriff’s office, as it is often the cheapest option. Unfortunately, the decision isn’t as simple as it may seem, as there are numerous pros and cons that litigants should be weighing when they choose how to serve parties in a lawsuit. The attorneys at the Underwood Law Firm, however, are well-versed in the legal tools involving service of process and are here to help our clients make these difficult decisions.
What is “Service of Process?”
Service of process is the legal way of saying that a copy of the summons and complaint must be served on every defendant in the action. And though many litigants believe it comprises a small portion of a potential case, the importance of service cannot be understated.
Service of the process is the means by which the defendant learns of the lawsuit. In other words, without proper service, the defendant never receives “notice” that they have been sued. And if the defendant doesn’t have notice, then any judgment entered against them will be rendered void, making it totally unenforceable.
This is sometimes true even if the defendant eventually learns that they have been sued through other means (e.g., a text message or phone call from a mutual acquaintance). In these instances, the plaintiff’s complete failure to comply with the statutory requirements for service will not render actual notice of the lawsuit to be valid. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.)
Put simply, getting service of process right from the outset is critical to success of any lawsuit.
Who can serve a complaint and summons?
In California, the answer to this question is quite clear. Under Code of Civil Procedure section 414.10, “a summons may be served by any person who is at least 18 years of age and not a party to the action.”
If the statute seems simplistic in its prohibitions, that’s because it is. Provided the person serving the papers is over 18, virtually anyone can hand deliver a complaint and summons to the defendant, even the plaintiff’s attorney. The only strictly enforced requirement is that it not be the plaintiff themselves, as was the rule even under common law. (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 865.)
Are Sheriffs also allowed to serve summons and complaints?
Yes. Sheriffs, provided they aren’t serving process in their own individual lawsuit, fall within the broad range of persons allowed to effectuate service under Civil Code section 414.10. In addition, California’ Government Code section 26608 states that “the Sheriff shall serve all process and notices in the manner prescribed by law.”
Paired together, these statutes make it clear that it is within the power of the local Sheriff to serve complaints on defendants living within their county. Moreover, the type of complaint isn’t limited either. Government Code section 26665 states that “all writs, notices, or other legal process issued by superior courts in civil actions… may be served by any duly qualified and acting marshal or sheriff,” provided the Sheriff follows the Code of Civil Procedure.
How does a Sheriff serve process?
The availability of the Sheriff’s office to effectuate service does not automatically render it the best option available to a litigant.
First, while a Sheriff may be bound to attempt service once the fee is paid to the department, the Sheriff is guided only by the standard of “reasonable diligence.” In other words, the Sheriff actually responsible for not “unreasonably” executing process. (Hayward Lumber & Inc. Co. v. Biscailuz (47 Cal. 2d 716, 721.)
It must be noted that service of process is only one of many public duties with which a Sheriff is charged. Thus, there are instances where an individual department may take weeks to actually serve the defendant. There may also be situations where the Sheriff makes only one or two house calls on the defendant’s residence.
Whether such conduct will be held to be “unreasonable” will depend on the facts of each case. Regardless, litigants should not be under the assumption that the Sheriff’s office will undertake every possible effort to effectuate service on their behalf.
Are Process Servers a Better Option than Sheriffs for Service of Process?
As always, these types of questions are best left to an attorney for the unique circumstances of each individual’s case.
That being said, the general logic is that going to a professional company for effectuating service may cost more money, but typically results in service being completed in a quicker fashion. The Sheriff’s department, on the other hand, may take longer but will usually be less expensive.
For instance, in Los Angeles County, the fee for service of a basic summons and complaint is only $40. However, the Sheriff’s Office has stated that it must be allowed a minimum of two weeks to make a diligent effort to effect service. For those litigants brushing up against the three-year limit on service, the Sheriff’s office might not make the most sense.
How the Lawyers at Underwood Law Firm Can Help
As many parties come to realize that starting lawsuit is even harder than they thought, they become desperate for answers. When it comes to service of process, these situations can be stressful, and frustrating, especially when the path forward is not entirely clear. Fortunately, the lawyers at the Underwood Law Firm specialize in partition actions and solving the difficult problems, like service, that follow these types of lawsuits. If you have found yourself in one of these situations, then please do not hesitate to contact us today.