Can the defendants deliberately evade the summon and complaint then claim defect in the service of process?
The defendants refused to let the process server enter the building and refused to let the guard receive the summon and complaint then claimed they were not served properly simply because the documents were left at the entrance door of the building. As part of the substituted service, the process server also mailed the documents to the defendants but defendants claimed they did not receive it.
The defendants cannot deliberately evade service of process. Under your scenario, you ought to be able to claim substituted service was proper, and thus request entry of default when the time comes. Put the burden on the defendants to make a motion to set aside the default. If you used a registered process server, the service is presumed to be proper.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is... more
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
If you obtain a default and/or default judgment based on this form of service and the other side files a motion to set aside default, it will be a judge who decides whom to believe and whether to set aside the default judgment and allow the defendants to file their response to the complaint on its merits or to require proper service, pursuant to the Cal. Code of Civil Procedure.
Looking back at an answer that Mr. Chen and Mr. Lee gave on April 24, 2012 regarding invalid service, Mr. Lee quoted from Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, which stated: "no authority permit[s] a California court to authorize an action to go forward upon an invalid service of process. The fact that the person served ‘got the word’ is irrelevant.”
Handing the summons to a guard may be (or not be) valid service, but it will turn on the facts as presented to the judge, if a motion to set aside default is filed. The type of defendant (individuals compared with a business entity) may also affect the type of service that is valid in a given situation. Service of summons is covered by Chapter 4, Cal. Code of Civil Procedure, Sections 413.10 to 417.40, with substitute service covered by Sec. 415.20 and service at a gated community covered in Sec. 415.21. These statutes should be read, including any cases that refer to it, so that you can see how the facts in your case might hold up.
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I am not sure about the status of the law in CA, however under CO law that would be deemed to be sufficient service. Especially given the fact that the process server also mailed the documents to the defendants and the documents were not returned as undeliverable. As a former judge, they are playing games with service of process. Nothing ticks off judges more than parties who are trying to interfere with the judicial system. Proceed forward. At worst, the judge will force you to publish the summons and complaint by publication. In all likelihood, the judge will reward you with costs for them playing these games.
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