Legal Question in Civil Litigation in California
My friend served the defendant's attorney with a complaint on 11/19/14 at noon. Then my friend went back to serve the defendant's attorney with the summons at 1 pm b/c he forgot the summons the first time. Is this a valid serving or do both documents have to be served together? I am asking since the defendant did not respond within the 30 days. Thanks
2 Answers from Attorneys
Service on the attorney is not valid service on the defendant at all, unless it is a cross-complaint in a case in which the attorney has already appeared for his client, or the client has agreed that the attorney may accept service of process for him or her. Otherwise you have to serve the defendant directly or there is no valid service.
It should be a valid service as of 1:00 P.M. on November 19, 2014 assuming an otherwise proper service. If your friend is the plaintiff, the service is invalid as a party to a lawsuit may not serve the summons. Also, service on a defendant's attorney is insufficient where the attorney has no actual or ostensible authority to accept service in the action. The fact that the attorney may be representing the defendant on another matter does not mean he has authority to accept service in this matter.
If thirty (30) days have passed without a response from defendant, you should contact the defendant's attorney to find out what's going on before pursuing a request for default. Judges do not look favorably on plaintiffs who don't follow up with the other side before doing so.
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