Most people arrive at their basic ideas about fairness by ten years of age. By the age of ten, most people understand that they should not lie, cheat or steal, or do anything to hurt another human being. It is what human beings learn after their tenth year that is responsible for most of the unbalanced conditions, whereby responsible adults knowingly violate the needs and rights of others for their own benefit, usually justified by elaborate fictions based on the idea that life is a jungle, etc.

Technically, service of process is the communication of the process (or, the court papers) to a defendant in a lawsuit, either by actual delivery, or by other methods, whereby the defendant is furnished with reasonable notice of the proceedings against him or her, to afford the defendant the opportunity to appear and be heard. "Process," alone, is defined as "a formal writing (writ) issued by authority of law," and is the means by which the court acquires jurisdiction over a person; and it usually refers to the method used to compel the attendance of a defendant in court in a civil suit. The rules of process are governed by the jurisdiction of the courts, so that process service is governed by state law, unless the jurisdiction is federal, and then service of process is governed by federal law.

Service is absolutely essential to a valid lawsuit, and after a SUMMONS and COMPLAINT (or PETITION) are filed with the court, conformed copies must be served on the defendant for the lawsuit to proceed. The plaintiff has about two to three years to perform service, based on local rules, and once service is made a PROOF OF SERVICE must be filed with the court in order for the lawsuit to go ahead. If service is not made, the clerk of the court will not accept any further filings pertaining to the case, for until service is made, the court does not have "jurisdiction" to resolve the case (legal authority).

Technically a case can be overturned on the basis that service of process was not valid. While this is very technical, and in ex parte cases (such as temporary Restraining Orders) the judges often will refuse to void a restraining order on the basis of an invalid service, because it sounds like the person who wants it voided wants the court to give him or her permission to harass the plaintiff. (TROs are specifically designed to prohibit harassment, and when a defendant shows up in court asking for a TRO to be rescinded on the basis that service was not legal, it is obvious to the judge that the defendant did have knowledge of the hearing). In civil cases, however, where money or property hang in the balance, then judgments have been set aside on the basis that the original service was not legal. This is done by a Motion to Vacate a Judgment on the basis of lack of service. Sometimes these are granted, and then a new service is performed, or a new suit is filed, and a new service is performed, so that the defendant has "his day in court."

In cases where service is contested what will happen is a hearing will be set and the defendant will be allowed to present evidence showing that he was not served. Likewise, the person who served the process will probably be called to the witness stand, and swear under penalty of perjury that he or she did, indeed, serve the papers on the defendant, and to show that this was done, the process server will be asked to point to the person he or she served. If the process server can stand up and point directly at the party he served, it can be very convincing evidence that the service was, in fact, valid.

Service must always be performed by a third party, who is not one of the two principals of the lawsuit. This means that neither the defendant or the plaintiff can serve their own process. It must be done by a neutral third party, who is then responsible for signing the Proof of Service. The party must be of legal age (18 years), and can be a friend, a relative, an acquaintance, a business associate, a marshal, or a paid professional process server. (Again, the form is dictated by state law, and the law of the jurisdiction, state law for state courts, federal law for federal courts).

The way process can be served is broken down into five methods, based on a priority recognized by law. What this means is that the plaintiff must attempt each type of service before proceeding to the next unless there is an obvious reason why one type of service is selected, and the others are not chosen (such as when the whereabouts of a defendant are unknown); what is important is that a diligent effort is made to perform service. This is very important, because the diligence of the plaintiff is essential to the final acceptance of the service.

1. SERVICE BY PERSONAL DELIVERY
Personal delivery means that the summons and the complaint are personally delivered to the defendant on a face to face basis. This is the most effective kind of service, and is the most highly recommended. In order for the reasonable diligence requirement to be fulfilled, a minimum of three attempts must be made, at three different times of day.

2. SUBSTITUTED SERVICE ON A CORPORATION, OR UNINCORPORATED ASSOCIATION
Because an institution is not a natural person, the service of process on a corporation or association is extremely technical. Most corporations have an agent who is appointed solely for the purpose of receiving legal process, and the identity of this person is supposed to be a matter of public record. Most institutions will tell you who the person is without too much trouble. To perform service on a corporation, a copy of the summons and complaint may be left with a person who appears to be in charge of the office of the party charged with accepting service, such as the secretary to the agent, and the person so served must be informed of the contents. Often, also, particular officers of the corporation or association are charged with receiving process, so that service performed on their secretary is acceptable. On the other hand, if the receptionist at the front door is served, this is often not a valid service. The person served must be 18 years of age, and the name and title of the person served should be obtained.

3. SUBSTITUTED SERVICE ON A NATURAL PERSON, MINOR, INCOMPETENT OR CANDIDATE FOR PUBLIC OFFICE
A declaration or affidavit must be prepared establishing reasonable diligence in first attempting personal service (by delivery, #1, above). In lieu of personal service (the preferred type of service) substituted service is made by leaving a copy of the summons and complaint either at the defendant's place of business with a person apparently in charge of his office, or at his dwelling house or usual place of abode with a competent member of his household, or usual mailing address other than a post office box with a person apparently in charge. The person with whom the papers are left must be at least 18 years of age and must be informed of the contents; the name of the person and his or her relationship to the defendant should be obtained. In California the courts hold that where the process server's actions were calculated to, and did, result in actual notice, it meets the reasonable diligence requirement. Afterwards, a copy of the summons and complaint must be mailed by first-class mail, postage prepaid, to the defendant at the place where the copy of the summons and complaint were left. Service is complete on the 10th day after mailing.

4. MAIL AND ACKNOWLEDGMENT OF RECEIPT
In cases where the defendant is a willing participant, the entire service of process ordeal can be made effective by simply mailing the defendant a Notice and Acknowledgment of Receipt. Once signed and filed with the court, the Notice and Acknowledgment is deemed complete on the date the document is executed (signed). If the summons is Notice is not returned in 20 days, the defendant is also liable for the costs incurred in serving the defendant. Most jurisdictions have a standard form that can be filled out and signed.

5. SERVICE BY PUBLICATION
If an individual defendant cannot with due diligence be served in any of the foregoing ways, he or she may be served by publishing a summons in a California newspaper (local rules apply, and other states probably have similar regulations). Such a defendant might have departed from California, or he or she might be concealing him or her self to avoid service. PROCEDURE: An affidavit for publication of summons in which is recited all attempts to locate the defendant, that is searches of telephone directories, city directories, county tax collectors records, register of voters records, details of inquiries made, and dates, is taken to a judge with an ORDER FOR PUBLICATION FOR SUMMONS. The newspaper in which publication is to be made should be named in the order and should be designated as most likely to give notice to the person to be served. The Government Code requires publication once a week for four successive weeks, in a newspaper published once a week or more often, with at least five days intervening between the respective publication dates, not counting such publication dates. The court may order a longer period of publication, and the service is complete at the expiration of the time prescribed by the order for publication. The order for publication must direct that a copy of the summons and complaint be mailed to the defendant if his or her address is ascertained before the expiration of the time prescribed for publication of summons. A copy of the order for publication must also be mailed forthwith to the defendant.

SERVING PERSONS WHO LIVE OUTSIDE THE STATE WHERE THE LAWSUIT IS FILED: Service may be made in any manner provided for service, or by mailing a copy of the summons and complaint by first-class mail, postage prepaid, requiring a return receipt WITH RESTRICTED DELIVERY (i.e., delivery restricted to addressee ONLY). When the return receipt is returned with the defendant's signature, it must be filed along with the Proof of Service. It may also be necessary to file a declaration that service was performed by mail. The effective date of service is the 10th day after mailing. Again, the party performing service cannot be a party to the lawsuit, and the Proof of Service must be signed by the neutral third party that performed service.

APPEARANCE AND WAIVER: An A&W is a document a respondent/defendant can file that has the effect of a) making a general appearance; b) waive military rights, and c) agree to let the case go without contest. In cases where the defendant or respondent files an Answer or Response, then the only way the case can be resolved is by a trial or agreement (settlement). Also, in cases where the defendant or respondent is in active military service, the only way the action can proceed is if the person will sign at least the military portion of the waiver. (Note: In divorce cases with property, support or any unresolved issues, the respondent should hesitate to waive rights other than the military waiver BEFORE a marital settlement agreement has been signed; if an MSA has not been signed, the respondent should file a Response and the A&W after the MSA is completed).

DISCLAIMER: The Justice Center does not give legal advice. This pamphlet is provided free of charge, as a public service for general informational purposes only. No warranty is made or implied. Persons with questions of law are encouraged to seek the advice of an attorney.