Legal Question in Civil Litigation in California

The service was not proper, but doing nothing can be a problem for your son.

If the process server produces a "Proof of Service," indicating that your son was served by serving an adult, at his residence, the court will accept the process server's statement. Then, if your son does not reply to the Summons and other materials, the plaintiff can seek a default and obtain a judgment against your son. This process can all happen, even if your son never knows about the lawsuit.

If you call the attorney who is listed on the Summons and tell him or her that you do not know where your son is and that he has not lived at your home for two years, the attorney should try to verify your story and refrain from seeking a default. "Should" is the key word. In fact, the attorney may not believe you or just wish to move forward with the default.

Your son will need to deal with the default, sooner or later. I think it's prudent to try to contact the plaintiff's attorney, first. Under similar circumstance, I would not try to obtain a default, although I might solicit your help in finding your son.

If you know where to contact your son, you can tell him about the Summons. He can hire an attorney to bring a "motion to quash service." The attorney need not inform the plaintiff's attorney of your son's location, so the plaintiff will be back to square one, with trying to find your son and get him served. Of course, your son can bring the motion to quash service, without an attorney, but, if he does, the plaintiff's counsel will have located your son, so proper service can be effectuated.

Another course might be for you to contact the plaintiff's attorney, as I previously described. If the attorney will not refrain from taking default, you can file a declaration, in court, explaining the circumstances. Then, when the attorney seeks a default, the clerk who handles the default requests will have access to your declaration and should deny the default request.

If you and your son do nothing, the case could go to a default judgment. Then, your son will be in the position of needing to set aside the judgment, so that it cannot be enforced against him.

Another matter for your son to consider is whether he wants to waive the improper service and address the lawsuit, directly. Either your son or his attorney can respond to the Summons and other papers that were served and forget about the flawed service. Sometimes, it is better to simply try to resolve the dispute, rather than fight it on technical grounds. Sometimes, not.

The short answer is, send the letter. You can't file a declaration in the action. You are not a party and cannot represent a party. So you cannot file anything. By sending a letter, you have put the plaintiff's attorney on written notice (keep a copy) that his service is improper. If he then takes a default, it will not only be easy for your son to get it set aside, the attorney will be subject to sanctions and possible abuse of process charges.