Tips for Obtaining a Court Order to Serve by Publication in California Civil Cases
First Thing's First--Attempt Personal (or Substituted) ServiceObviously, you will not know that you are going to need an order to serve by publication without first attempting to personally serve the other party at all possible valid addresses. HOWEVER, remember that, if you are a pro per litigant--that is, you are representing yourself in the action--you, personally, cannot attempt service, since you are a party to the suit; thus, you must have a process server, the sheriff, or even some other third-party (such as your next-door neighbor) attempt to serve the opposing party. Then, make sure that the individual who does make these service attempts executes a declaration, under the penalty of perjury, regarding their attempts (i.e., the address where service was attempted, as well as the includes dates and times of the attempts). (You usually do not have to worry about asking a process server or the sheriff for this, as it is standard for them to automatically execute such declarations and give you, or the court, the original.)
Look for a Valid Address Where the Opposing Party Can be LocatedIn order to obtain an order for service of summons (or citation) by publication, you must show, with reasonable diligence, that the party to be served cannot be served in a manner other than by publication--that is, you cannot serve them by personal or substituted service at their home, place of work, or anywhere else they are known to frequent. While 'reasonable diligence' is not really defined, most courts will view diligence as being reasonable where it involves conducting investigations and inquiries such as:
- checking various people locator websites (i.e., internet sites that provide data for locating people);
- searching local telephone directories;
- searching real property ownership records;
- obtaining a report from the Department of Motor Vehicles (NOTE: This would only apply to motor vehicle accidents cases and the request must be made by an attorney.);
- checking the local post office for change of address information;
Follow-Up on Any LeadsIt is amazing how many litigants (and even litigants' attorneys!) do their due diligence, but do not bother following up on any leads by attempting personal (or substituted) service at any potential addresses that they may have discovered as a result of their searches. For example, if you come across a possible valid residential address for the other party, as a result of the real property ownership search that you conducted, then make sure to have personal service attempted at that address (and, of course, do not forget to get a declaration, from the person attempting service, regarding their attempts).
Demonstrate Your Due Diligence to the CourtOnce investigations and inquiries have been made, and you have followed up on any potential leads, make sure to submit a declaration, by an individual with personal knowledge, regarding the searches that were conducted, along with your application and order for publication. Additionally--if applicable--make sure that you also attach a copy of the report you got from the DMV, the change of address form showing that it was completed and stamped by the USPS, as well as any other documents that show that you have really tried to find the other party. (And, it never hurts to include some or all of the print-outs you received showing the results of your various computer searches.)
Select a Newspaper to Publish InYou--NOT the court--need to chose a newspaper, of general circulation, that is most likely to give notice to the opposing party. A newspaper is deemed likely to give notice when, for example, it is published in the area that the opposing party was last known to reside or do business. While you can always try the court clerk to see if they have a list of newspapers for you to chose from, make things easier by just searching online for an acceptable publication. Also, keep in mind that the newspaper you decide to publish in does not have to be a publication such as the Los Angeles Times (which could be super expensive to publish in) or the Daily News; in fact, most often, litigants opt for a legal newspaper, such as the Daily Journal or the Metropolitan News. And, if the opposing party you are trying to serve only speaks, for example, Korean, then it would be a good idea to publish in a Korean newspaper of general circulation in the area where the other party last lived or worked.
The Application for Publication and Order for PublicationBefore you begin drafting your Application and Order for Publication, first determine whether the specific county courthouse in which your case was filed requires the use of court forms or, rather, requires that you submit your application and order in legal pleading format. While there is no Judicial Council form for the application or order for publication, most counties do have local forms that you could find on their website. If such a local form does, in fact, exist, do yourself a favor and use it. Look at it this way, you are more likely to get your documents rejected (or, 'kicked back') if you do not use these forms, than if you do (that is, assuming that you complete them correctly). But, if there are no local forms for you to use, then simply submit your application and order in a legal pleading format. Also, be careful you do not use a local form from a county other than the one where your case is being heard (e.g., using an Orange County form in L.A. Superior Court).