Legal Question in Civil Litigation in California
I have an interesting Service of Summons situation. My question is how to complete the Proof of Service in the following situation:
BACKGROUND:
I sued a prior tenant for payment of back rent. After he vacated my residence, I had no residence nor business address (his employer told he that he is no longer employed by them). However, I had some personal property of his and emailed him that he should come collect it at my office.
He acknowledged the email and sent a friend to collect the personal property. When the friend arrived, my receptionist photocopied his driver license and had him sign and date a receipt which stated, "I have received personal property for [defendant's name] and a summons and complaint." She then gave him the property and the summons.
Clearly, the defendant sent a representative and the representative acknowledged receiving the summons and complaint, so how to complete the Proof of Service of Summons?
1. Do I mark "by substituted service"?
2. For substituted service, a copy of the summons & complaint must be mailed to the defendant at the location where the papers were served. Will it still be valid to mail the papers to my own office addressed to the defendant who has never work there?
3. If my receptionist mails the papers to my office, what should my office do when they receive the envelope? Mark the envelope "addressee unknown" and return to sender? My office is my address of record for this suit, so the envelope would just be returned to me at the same location to where it was delivered!
I understand that I must also file a Declaration of Diligence.
Thank you for your help in this interesting twist!
3 Answers from Attorneys
You have not served the defendant properly. Service on his friend might have been proper if the defendant had expressly authorized his friend to accept service on his behalf. Merely sending him to pick up some personal property was not sufficient. Saying that the friend was his "representative" does not overcome this problem, since representatives have limited authority and since there is no evidence his authority included accepting service. That the friend acknowledged picking up the summons and complaint does not mean you effectively served the defendant -- unless, unbeknownst to you, the defendant actually did authorize his friend to accept service for him. That is extremely unlikely.
I agree with Mr. Hoffman. There is nothing to fill out, because he was not validly served.
You have not even come close to satisfying the requirements for substituted service. Unless the friend was registered with the Secretary of State as the tenant's agent for service of process, you might just as well have handed the summons to a homeless person on the street for all the legal effect it had as service of process. Substituted service must be made at the defendant's actual residence or place of business, after attempts to serve him personally at those locations fail. If he contests service the burden is on you to prove the location was his actual residence or place of business, which of course your office is not. You have no effective service and therefore there is no proper way to fill out a proof.
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