Legal Question in Civil Litigation in California

Re: subpoenas left in mailbox

I agree with Hoffman & Cohen.

Re: subpoenas left in mailbox

From the responses you have previously received, you can see that this is always a question of fact, as to how the subpoena is served. Some process servers have gotten on the witness stand and out and out lied about the manner of service. Although the service may be defective, a judge may believe the process server, and even before that you may be forced to move for relief from a default or default judgment. As long as you know of the poor service, it pays to look into the matter and probably timely file and answer, or demurrer and, if appropriate, a cross-complaint, which if you have one may be compulsory.

Re: subpoenas left in mailbox

Personal service can be accomplished in different ways, and one of these ways is called "substituted service". It requires an attempt to hand the subpoena to the witness at his/her home or place of business, followed by mailing of the same document. You may yet find another copy of the subpoena arriving by mail, which will likely mean that the party subpoenaing you has followed the proper steps.

The amount of notice you received is a potential weakness, though. Trial subpoenas really should be served ten days in advance. Your question doesn't specify when you got the subpoena or when you are supposed to appear, but it sounds like the notice may have been inadequate.

I am not saying that I think this service was defective, since I have only your general account of what happened. With more details I might be able to offer a more firm opinion. I urge you *not* to rely on my analysis here when deciding what to do next, since there may be important consequences and since, as I said, I don't know enough about your situation to be definitive.

There may be other issues as well, depending on facts unavailable to me at the moment.

You could try to ignore the subpoena, but that tactic is risky. If the court doesn't realize there are problems with the service (and a busy court very well might not notice if no one is there to advocate your position), it might issue an arrest warrant and have you brought to court forcibly. You could then demonstrate that you were not served properly, but only after you've gone through the associated ordeal and embarassment. If the court disagrees with you and believes service was proper, well, it *probably* won't do anything further to you.

Alternatively, you can make a motion to quash the subpoena. You really should have a lawyer do this (the statute provides that you can recover your attorney fees in many instances), but you can try to do it in pro per.

Or you can just show up and testify. Unless there is some important reason why you don't want to appear, the effort to avoid testifying may not be worthwhile.

Re: subpoenas left in mailbox

A further thought, which only came to me after posting my prior reply:

You can try to call the attorney who subpoenaed you and explain the situation (better yet, have a lawyer do this for you) and see what arrangements you can work out. The lawyer might even agree that you were not properly served and just drop the matter completely.

I have had some similar experiences and have found that the attorneys are often reasonable -- especially where the service is improper or at least questionable. They have every incentive to work with you if the alternative is having to do without your testimony and pay your legal fees.

Don't delay, though, since your time is running out and since an attorney preparing for trial will be very busy and thus potentially hard to reach.

Re: subpoenas left in mailbox

I agree with what Ed Hoffman says. One additional matter -- you might call the other attorney and ask that you be put "on call," which means they'll call you with some notice (2 hours or more), so that you don't have to show up at court on the first day. Often, trials don't start on the day they're scheduled and, if they do, jury selection could take several hours or days.