Where a husband and wife are the defendants, does service of the complaint on the husband count as service on the wife?

Asked over 1 year ago - Los Angeles, CA

The husband emailed me, the plaintiff, and volunteered to be at home for service. He had seen the complaint earlier and knew it listed him AND his wife as Defendants. The server knew the husband & gave him the complaint. We assumed this would suffice for both, especially since he had invited us to serve him, and he did so knowing she was a Def, but now they might say she wasn't served. Doesn't agency law or such mean she has been "effectively" served? They're still married, together, etc. If I have to find her in another state, I guess I could, but she has seen the Complaint, I'm certain, and I doubt they would argue she hasn't. But will a judge say, Too bad, get proof of service? It's not enough that everybody acknowledges that she got it?

Attorney answers (5)

  1. Michael Raymond Daymude

    Pro

    Contributor Level 20

    9

    Lawyers agree

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    Answered . Each defendant needs to be served. The facts you describe establish service only on the husband. You still need to serve the wife, unless she voluntarily responds to the complaint.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
  2. Judy A. Goldstein

    Contributor Level 20

    8

    Lawyers agree

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    Answered . If two sets of the summons and complaint had been swerved and both defendants resided where service took place, then service would have been proper - personal service on the husband and substitute service on the wife. One set of papers only covered the husband. Perhaps there will be no claim of bad service but you take that chance.

  3. Terence Mark Sternberg

    Contributor Level 3

    6

    Lawyers agree

    Answered . From the facts you've provided, you have not served the wife.

    You could have accomplished substituted service on the wife by leaving the papers with the husband at their residence had you first made additional unsuccesful "reasonable" efforts to personally serve her (usually satisfied with 3 unsuccessful attempts.) Even then, you would have had to have followed up leaving the papers with the husband with a separate mailing to the wife directed to their residence.

  4. Robert Bruce Kopelson

    Contributor Level 20

    5

    Lawyers agree

    Answered . To clarify, you need to serve wife. Even serving 2 sets on husband isnt sufficient to constitute substituted service in Calif. Before sub service is allowed, there must be 3 attempts on different days to serve the person personally. Then the papers can be left at their residence with a spouse. Then another set must be mailed to the wife at the residence. Service isnt complete until 10 days after mailing the second set following delivery to husband of the first set. if there werent 3 attempts before leaving papers with husband, you havent properly subservedeven if you mail now.

  5. Sagi Shaked

    Pro

    Contributor Level 13

    5

    Lawyers agree

    1

    Answered . I agree with Judy. If two sets of Summons were issued and served on husband and they live together, you are fine.

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