1. Defendant’s refusal to accept service.
Sometimes the greatest challenge in serving a defendant is locating them. But what do you do when you find them and they refuse to accept the papers? For example, you might knock on their door, but they refuse to open it and tell you to go away. Or you might try to hand them the papers, but they refuse to take them. Can you drop the papers at their feet and tell them that they have been served? If you are talking to them through a locked door, can you leave the papers on their doorstep? This guide discusses some amusing cases in trying to serve a stubborn defendant who doesn’t want to get served.
2.“Drop Service": Placing the papers near the defendant.
A. When the defendant refuses to reveal their identity.
In Stafford v. Mach (1st Dist. 1998) 64 CA4th 1174, a process server made 6 attempts to personally serve at defendant Mach’s residence. Mach answered the door, but did not reveal his identity. The server reported that “an Asian male answered the door" and when the server asked for Mach, the male “began asking a lot of questions such as why the server was asking for the subject and who sent the server. The server then told the man that he had legal documents for Mach and asked him to show identification. The male said he never heard of Mach before, refused to show identification, and threatened to call the cops. The server then “announced drop service" and left the papers with him. On the proof of service, the server noted that the person he served was “John Doe, co-occupant, (Asian M, 5’6", 150 lbs, 30-40 YR, Blk Hair)." The server mailed the summons and complaint to Mach at the same address. Stafford held that service was valid.
Process servers call it “drop service" because they literally drop the papers in front of the person or at their door. Service is proper even if the defendant doesn’t pick up the papers. When that happens, the server should just leave the papers there.
Stafford reminds me of a funny story. In that case, plaintiff had trouble serving defendant 5 times between October 30 and November 15. If you are having trouble serving a defendant in October, wait until Halloween, knock on their door, say trick or treat, and announce drop service! I did this once. I hired 2 companies who said defendant was home, but wouldn’t open their door. They tried for weeks. On Halloween night, I approached the house with some high school kids. When defendant answered, I handed them the papers and told them they had been served with a lawsuit. If they refused to take the papers, I would have dropped the papers near them. When they realized what happened, their jaw dropped. Now that’s what I call drop service!
B. Tossing court papers on a nearby table in the presence of a receptionist.
In Ludka v. Memory Magnetics Int’l (2nd Dist. 1972) 25 CA3d 316, the process server entered the defendant’s offices and asked to see the president of defendant corporation, but was told the president was out. After being unsuccessful to speak to another officer, the server threw some papers on a coffee table near the receptionist and said, “You’re served." Copies of the summons and complaint were then mailed to defendant. A third party Gordon was sitting in the reception area and saw the incident. Gordon said, “Having been on the Glendale police force for five years, I told him that that was not service and threw the papers into a waste basket, ... At that time I was not an officer, employee, agent or otherwise associated with any of the defendants."
The corporation’s president declared that a Mrs. Arenas, upon whom service was claimed to have been made, was employed as a receptionist by Associated Baked Enamel Company, located in suite 1200, Union Bank Tower. Powers declared that Mrs. Arenas was not then his secretary, nor an agent for the service of process of defendant corporation; and that his own office was in suite 1210, Union Bank Tower “which is half way around the building" from suite 1200.
The defendant argued that service was invalid because the receptionist was not authorized to accept service and because a third party in the reception area threw the papers in the trash. The court rejected these arguments and held that service “amply complied" with section 415.20 and that the gratuitous actions of third party Gordon did not render service ineffective.
Regarding defendant’s argument that Mrs. Arenas was unrelated to defendant, Plaintiff declared: (1) his familiarity with the layout of suite 1200, Union Bank Tower; (2) that defendant “used many corporate titles," including that of Associated Baked Enamel Company, (3) that defendant and other corporations all used suite 1200 as a common reception area; (4) there was no access by the public to any other rooms within the suite except through room 1200; (5) that all persons, deliveries and mail for defendant came through suite 1200; and (6) room 1210 had no identification number on the outside of the office nor any corporate markings. Based on these facts, Mrs. Arenas was determined to be “the person who was apparently in charge" of the office.
C. Tossing court papers on the ground a few feet in front of the defendant.
In In re Ball (2nd Dist. 1934) 2 Cal.App.2d 578, service was proper when the process server tossed the papers on the ground in front of the defendant who refused to pick them up. The process server came within 12 feet of the defendant with the summons and complaint in hand and said: “I have here another one of those things for you." The defendant replied: “You have nothing for me" and started to walk away. While defendant was moving away in a sidewise manner and looking at the server, the server handed or tossed the process toward defendant—the papers fell a few feet from him—at the same time saying, “Now you are served." Defendant did not pick it up but continued to walk away from the premises. The court in Ball held that service was sufficient: “We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand." (Ball at 579.)
D. Placing court papers under a windshield wiper when the defendant is in a locked car.
In Trujillo v Trujillo (3rd Dist. 1945) 71 Cal.App.2d 257, the court held that service was proper when the papers were left under a windshield wiper after the defendant locked himself in his car. While the car window was open, the process server explained to the defendant the nature of the documents which he attempted to serve and read to him the order to show cause “in a loud and clear voice," but the defendant rolled the window up and refused to accept the documents. The process server then placed the papers under the windshield wiper in plain view of the defendant, who first tried to dislodge the papers by starting the windshield wiper, but failed to do so until after he had driven away. The court rejected defendant’s argument that he couldn’t hear from the process server was saying and that the papers fell off the wiper as he drove away.
3. What do you do if the defendant refuses to answer a locked door?
In Khourie, Crew & Jaeger v. Sabek, Inc. (1st Dist. 1990) 220 Cal.App.3d 1009, the court answered this question: Can a corporation attempt to avoid service of process by refusing to unlock its door?
A process server went to defendant’s place of business at approximately 4:30 in the afternoon in order to serve its agent with plaintiff’s summons and complaint. Defendant’s door was locked. But a woman responded when the process server rang the bell. She refused to tell him her name and refused to unlock the door. The process server explained his purpose and she stated that she was “‘not accepting the papers."’ The process server said, “I then told the woman that I was leaving the summons and complaints outside the locked door. She was watching as I placed the documents just outside the door." Six days later, the process server mailed a copy of the summons and complaint to the defendant at its place of business.
The court said that defendant’s argument that service failed because the process server did not somehow manage to get past the locked door and into the office is unpersuasive. “The evident purpose of Code of Civil Procedure section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person, plus actual notification of the action by mailing the summons and complaint to the appropriate party." (Id. at 1013.) Citing to In re Ball—discussed above—Khourie said, “It is established that a defendant will not be permitted to defeat service by rendering physical service impossible." (Khourie at 1013.)
Process servers have a tough job. At the sight of a process server, defendants can become hostile. For example, I once had a guy who came outside with a gun when he knew we were there to serve him.
When defendants see a process server, they may erroneously believe that they have the right to refuse service by not accepting the papers in their hands. Now you have some tools to deal with this tactic.
The facts in the cases above can be amusing. But it’s not amusing if you are unable to timely serve a summons and complaint. A court has the right to dismiss your case if you fail to serve a defendant.
Keep in mind that the cases in this guide are interesting because the facts are interesting. The facts are detailed. Learn from these cases. If you have to serve a defendant behind a locked door, in a locked car, or by drop service, make sure that your proof of service has all the facts surrounding service. Make it interesting. The more detailed the facts, the more interesting and helpful it will be for the judge who will determine whether service was valid.