The Pitfalls of Substituted Service in California Tort Claims

Substituted Service is the ugly step-child of California Code’s Service of Summons procedures and unfortunately frequent in tort related claims. While personal service is effective on its face and difficult to fight, substituted service requires the Plaintiff Party to work to show the Defendant was properly served. Plaintiff’s efforts may still be challenged at court even if they performed reasonable due diligence. Real challenges subsequently occur when the Plaintiff performs substituted service on a commercial post office used by the Defendant. This can more often than not punish the Defendant’s ability to have actual notice.

Section 415.20(a) and (b)

Section 415.20(a) and (b) authorize substitute service of process in lieu of personal delivery. Substituted Service via Section 415.20(a) outlays the means how and where a summons may be served. The summons may be left at a Party’s office or place of business or usual mailing address that is not a USPS post office box AND left with a person at least 19 years of age, informed of the contacts thereof. If the summons is left at an office/usual place of business or usual mailing address, the summons must be left with someone who is apparently in charge thereof.

Substituted Service via Section 415.20(b) outlays the process by which substituted service must be performed. The process involves 1) Reasonable diligence to personally serve the defendant; 2) Left with someone of age and apparently in charge of the office, address of business; and 3) Mailed a copy of the summons to the same address. The court in Bein v. Brechtel-Jochim Group, Inc. (1992) found that 2-3 attempts to personally serve the party counted for Reasonable Diligence. Moreover, service must be made upon a person who is more likely than not to deliver to the named party. Courts generally take a liberal view to uphold service if actual notice was received by the party, so even if formalities within section 415.20 are not followed, actual notice by the party may still lead to a ruling of effective service.

Following such procedures are important as deficiencies may be cause to quash summons. Such was the case in Painaway Australia Pty Limited v. Natures Investments Holding Pty Ltd.(2016) Here, the Plaintiff left service of process at the address of a commercial post office that was listed on the Defendant company’s website. The address was used for customers to return unsatisfactory products. Within the Declaration of Due Diligence, the Plaintiff failed to identify the they served the defendant during usual office hours in the Defendant’s office, therefore contending that the address was the Defendant’s usual mailing address. There were no attempts to locate the Defendant’s usual mailing address. While the Plaintiff argued the caselaw that allowed service upon a commercial post box, there were no facts to suggest that that address was the Defendant’s usual business AND that the Defendant had actual knowledge of the lawsuit.

Section 415(c)

Subsection (c), provides an even more straightforward means of service of process using a Commercial Post Box. The process involves serving stating within the Declaration of Due Diligence that the private mailbox is the only address reasonably known to be served, leaving a copy of the summons and complaint with the commercial mail receiving agency(CMRA) owner or operator. CMRA owners or operators are subsequently required to place a copy of the documents or notice of receipt in the mailbox and within 5 days after receipt send documents by first class mail to the last known home or personal address of amil receiving service customer.

Unlike in subsection (a) and (b), service under subsection (c) may be effected upon first delivery. AND even if the party to be served closed their post box, they still may be able to be served up until two years after close. This is extraordinarily favorable to the Plaintiffs with ample room for abuse.

It would be plausible for a situation to arise in which a party closed their commercial post office and subsequently moved away from their last known home or personal address. Typically, commercial post boxes require that a new address is provided to send mail to, but in the case where the mail carrier doesn’t acquire the address, the new address is wrong, or the mail carrier closes. Substituted service under Section 415(c) may be effective and the Defendant may be without means of attaining actual notice of the suit.

Recommendations:

Plaintiffs serving via substituted service must provide sufficient information within the declaration for due diligence. A challenge to service of process delays litigation further even if unsuccessful. Attorney review of Proof of Service and Declaration of Due Diligence may be necessary especially for new Process Server services.

Defendants being sued cannot take for granted claims that lack personal service OR fighting claims that have deficiencies in substituted service. Issues can occur when the Defendant does not have actual notice but theoretically should have had actual notice under Subsection (c) if the Commercial Mail Receiving Agency performed all required actions correctly. Defendants should be cognizant of their Commercial Post Boxes and legal ramifications of using one.