Legal Question in Civil Litigation in California
I recently filed a cross complaint on a civil limited original complaint. I named 3 parties in the cross complaint which was filed with the court.
All three parties were served at their office and usual place of business. The person accepting service said they were able to accept service for all 3 parties: the law partnership, and each of the name partners individually and in their official capacity.
The POS forms were completed and sent to the court, which stamped them received.
The partnership responded, but the named partners have not. I have filed for a default relative to the named partners since no response has been provided as required.
The court clerk says that in order to log the default, the process server needs to amend their POSes for the two individuals to show that it was technically a sub-serve (as the named partners refused to come to the lobby for the service and the general manager indicated that she could accept service on behalf of all 3 parties).
So the question is this: How does one go about amending a POS? Can�t find a Judicial Counsel form, can�t find a code citing, and maybe its simply re-filing the the same POS form as before but with the correct check boxes marked as indicated.
Clearly they got the service since the partnership responded, but no one at my local law library knows how to amend a POS and the court clerks aren�t talking either.
How does this get done? Give me the step by step, and I would be most appreciated. Thank you.
2 Answers from Attorneys
The process server should know how to do this. The server writes "Amended" next to the words "Proof of Service" and puts the correct information in the body of the proof. Also, if it was a true sub-serve, a copy should have been mailed to each individual to finalize service.
You don't amend the proof of service. You have to complete substituted service by mailing as, Mr. Cohen points out, and then by filing a proof of substituted service. That would be the correct boxes on the POS-010 form. If you are serving by substituted service, you must also have a declaration of diligence, showing your process servers attempts to serve them personally first. (Usually three attempts). Additionally, they have 40 days from the date copies of the summons and cross-complaint were mailed, so you are not going to be able to take their default until this period expires.
You may have gone about this the hard way, if your cross-complaint was filed against the parties suing you. In that situation, you don't need a summons, and could have served the cross-complaint by mail on all of the plaintiffs suing you.
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