My Question Of The Day On Small Claims Court comes from Michael P.. SK can you please help me out? Can you explain what the process of serving is and means and the ways. I know your an expert on Small Claims Court and we were trying to do it our-self to save money with other paperwork. I just had my baby and its turn into a huge mess, I should of hired you but didn’t see your page till I Google small claims questions and your beautiful face pop up. Can you explain to me what is a sub serve substitute service and a personal? Thanks in advance. You would be a huge help if you can use this question as your next its urgent we get your help. Michael
Hello Michael, You are so sweet, thank you dear, I would love to answer this for you. Sure I can use this as my next #SKQOTD I will explain service to you , I need to know what the other papers are as each type of legal papers have rules like a subpoena or ORAP must be personally served and cant be Sub Serve like a small claims case can. I will post below and you can add or message if you have any more questions. Congrats on your new baby. Take lots of pics they grown up so fast!
Below I Will explain the process of service :
The law says that when you sue a person, partnership, corporation, or the government, you must give formal notice to the other side that you have started the legal process. In the same way, when you are already involved in a case and file papers with the court, you are required to give the other side notice of the paperwork you have filed. The legal way to give formal notice is to have the other side “served” with a copy of the paperwork that you have filed with the court. This is called “service of process.”
“Service of process” means that the other side must get copies of any paper you file with the court. In “service of process” a third person (NOT you) is the one who actually delivers the paperwork to the other side. The person who does this is called the “server” or “process server.” Until the other side has been properly “served,” the judge cannot make any permanent orders or judgments.
The server gives the papers to the party being served. It can be at the party’s home, work, or anywhere on the street.
The server has to identify the party being served and hand the legal papers to him or her and inform him or her that they are court papers.
If the party being served does not want to take the papers, they can be left on the ground in front of him or her. If he or she takes the papers and tears them up or throws them away, service is still considered to be valid. The person being served does not have to sign anything.
The server then fills out a proof of service, detailing when, where, and how (in person) the papers were served. The server signs the proof of service and returns it to you to file in court.
Personal service is complete the day the papers are served.
“Personal service” is the most reliable type of service because the court knows for sure that the person being served got the papers and, if necessary, can question the process server about the “service.”
Since it is the most reliable, “personal service” is valid in all types of case. Also because it is so reliable, it is generally required when serving the first papers (the petition or complaint) in a case.
Service by Mail
In “service by mail,” someone – NOT a party to the case – must mail the documents to the other party. Only certain forms can be served by mail, an SC-100 can not be served by mail. Depending on what your serving may or may not be allowed, check your court websites for what allowed by mail and was is not. This is why its important to hire someone who understands this process like my office.
For “service by mail”:
If service by mail is allowed, The server mails the papers to the party being served. If the party being served is a person, the papers can be mailed to his or her home or mailing address. If it is a business, the papers must be mailed to the owner(s) at the business’s main office. If the business has an agent for service, the papers should be mailed to the agent for service. Learn more about serving a business.
The server then fills out a Proof of Service, detailing to whom the papers were mailed, to what address, when, how (by first-class mail), and where they were mailed from. The server signs the Proof of Service and returns it to you to file in court. If you sub serve a defendant you must follow up with a mailing the same day.
Service by mail is complete 5 days after the papers are mailed.
Mail service is easy but not very reliable because the court cannot know for sure that someone received the paperwork. Every state is different and in California only the clerk of the court can do a mailing of a SC-100 bear in mind please.
Substituted service is used after several attempts to personally serve the papers have failed.
For substituted service:
The server tries to personally serve the papers on the other party a number of times (usually 3 or more) but cannot find the party at home (or work, if that is the address the server has). The server must try different days of the week and different times of the day, at times when the other person is likely to be home (or at work if serving him or her there).
If the server is unable to find the person to be served on each one of those times, he or she can, on the last attempt, leave the papers with someone at the other party’s house, at least 18 years old, who lives there. If the server is trying to serve the papers at the other party’s work, then the papers can be left with someone at the office that appears to be in charge and is at least 18 years old.
The server must tell the person that he or she hands the papers to that they are legal documents for the other party. The server must also write down the name and address of the person he or she gave the court papers to. If the person will not give his or her name, the server must write down a detailed physical description.
Next, the server must mail a copy of the papers to the other party at the address where the papers were left.
The server must then:
Write up a “Declaration of Due Diligence,” which is document for the court detailing every attempt attempt he or she made to serve the papers in person. It should include the dates he or she went to the house or work, times of day, and what the result was (for example, “No one answered the door” or “Party not in the office”). The server has to sign this document under penalty of perjury. There is no form for this, but the server can use a Declaration (Form). Your court’s self-help center may have a local form to help you with this step too.
Fill out a Proof of Service, detailing when, where, and how the papers were served. The server has to make sure to write the name of the person he or she left the papers with (or a detailed physical description). The server signs the Proof of Service and returns it to you, with the Declaration of Due Diligence, to file in court.
Substituted service is complete 10 days after the day the papers are mailed.
I hope this answer you questions please post or inbox me if you have any of others. I tried to be as detailed as possible but I know the small claims rules so this may be confusing for some and helpful for others. If you need help for service, contact my office. You will only get your process serving fees back if the process server is license and bonded, all my servers are.
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