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Fraudulent process service

Discussion in 'Small Claims & Municipal Court' started by neverlaysup, Nov 13, 2018.

  1. neverlaysup

    neverlaysup Law Topic Starter New Member

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    Jurisdiction:
    California
    Not sure how to proceed with this issue. A process server recently came to the house to serve my spouse and neither of us were home. Our pet sitter was in the driveway attending to some animals she cares for and the server attempted to give her the papers. She stated that she was the pet sitter and did not live here. The process server said he was just going to leave the papers and he placed them on a shelf above a hose in the front yard. I just looked on the court website and the submitted proof of service notes "personal service" to my spouse. How can I dispute this service with the courts? All research I do says its a waste of time but this seems pretty flagrant violation of protocol, this service was completed by the sheriff's court services department.
     
  2. army judge

    army judge Super Moderator

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    If the lawsuit is valid (even though you dispute the matter at hand), fighting service is a waste of your time.

    You'd be better served to fight the case, rather than the service.

    =============================================================

    From YOUR CA court website:

    In “personal service”:

    The server gives the papers to the party being served.

    It can be at the party’s home, work, or anywhere on the street.

    The server has to identify the party being served and hand the legal papers to him or her and inform him or her that they are court papers.

    If the party being served does not want to take the papers, they can be left on the ground in front of him or her.

    If he or she takes the papers and tears them up or throws them away, service is still considered to be valid.

    The person being served does not have to sign anything.

    The server then fills out a proof of service, detailing when, where, and how (in person) the papers were served.

    The server signs the proof of service and returns it to you to file in court.

    Personal service is complete the day the papers are served.

    “Personal service” is the most reliable type of service because the court knows for sure that the person being served got the papers and, if necessary, can question the process server about the “service.”

    Since it is the most reliable, “personal service” is valid in all types of case.

    Also because it is so reliable, it is generally required when serving the first papers (the petition or complaint) in a case.

    Service of Process - getting_started_selfhelp

    =========================================================

    A CA licensed bankruptcy attorney chimes in on personal service:

    Improper Service of Summons and Complaint in California

    ...................................................................................................................
     
  3. zddoodah

    zddoodah Well-Known Member

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    Even if the process server or sheriff had personally served your wife, he/she could not have personally served you. Even if the process server/sheriff believed the pet sitter was lying and was really your wife, he/she could only have effected substituted service on you under section 415.20 of the Code of Civil Procedure.

    As for how to dispute it, you can file a motion to quash pursuant to section 418.10 of the Code of Civil Procedure.

    It is. The whole point of serving lawsuit papers is to ensure that the defendant has notice of the lawsuit and an opportunity to defend. While what you described is not proper service, it did result in you receiving actual notice regarding the lawsuit. Therefore, rather than spend time and money on a motion to quash, why not avail yourself of the opportunity to defend against the plaintiff's claims? It would be a particularly significant waste of time if you have no defenses against the plaintiff's claims.

    Feel free to call or write to the supervisor of the process service division of the county sheriff and explain what happened and ask that the officer who did this be disciplined appropriately.
     
  4. adjusterjack

    adjusterjack Super Moderator

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    The goal of process service is to notify you that you're being sued. You've been notified. You know it's happening. You know you have to either show up in court or file an answer, or both. As long as you comply it means you have accepted service regardless of the service not exactly following the rules. If you show up in court and complain about it the judge will say "You got it, you're here, let's move on."

    The alternative is to ignore the lawsuit and let it go to default judgment. When the creditor starts to enforce the judgment you move to have it set aside due to improper service. The judge will set it aside, schedule a trial and you end up in court anyway.

    So, yeah, carping about the process service is a waste of time.

    Interesting comment. Brings to mind a situation I had with a pair of tenants, man and woman living together. They damaged my property beyond what the deposit covered. I sued both. I was able to serve the woman because I knew where she worked but the man had changed jobs and I couldn't find him. I get to court and they are both there. I explained to the judge that I had been unable to serve the man ("It's a cookbook!") and moved that he be considered just a witness and be excluded from the courtroom until such time as he gets called to testify unless he accepted service on the spot and agreed to participate as a defendant. I counted on him not wanting to leave his girlfriend alone and he accepted. On we went and I got a judgment against both of them (which they paid).

    Did anybody get the joke that I imbedded in that paragraph? I bet Highwayman got it.
     
  5. army judge

    army judge Super Moderator

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    Brother, you betcha I got it.

    "To Serve Man" is episode 89 of the series The Twilight Zone.
    "To Serve Man" originally aired on March 2, 1962 on CBS.

    It scared the juju out of me when I was a young lad on Rod Serling's Twilight Zone all too many decades ago.

    Beware Kanamits bearing "gifts".

    For those unfamiliar with the episode, here it is in beautiful B&W in its entirety:

     
  6. flyingron

    flyingron Well-Known Member

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    I'm not even sure this isn't proper service. Presuming the pet sitter was at least 18, this was valid personal service. The law doesn't require it go to someone RESIDING, just some adult present.
     
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  7. cynthiag

    cynthiag Active Member

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    I got it! :)
     
  8. mightymoose

    mightymoose Moderator

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    Arguing over the service would only delay the inevitable.
    If you aren't being inconvenienced by short notice then it is not worth making an issue of service.
     
  9. flyingron

    flyingron Well-Known Member

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    And before the Twilight Zone rendition of it, it was a short story by Damon Knight. It really didn't make much fanfare until the Twilight Zone, but it got one of the "retro" Hugos later on. (The Hugos didn't start until about 4 years after this story was published).
     
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  10. adjusterjack

    adjusterjack Super Moderator

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    The episode that scared me the most was the 1959 (I was 13) episode "Eye of the Beholder." That full episode is not on youtube but this excerpt includes the reveal. The image of the doctor when he turned around gave me the heebie jeebies. For many decades I couldn't watch or even think about that episode. Even now it gives me a turn.

    The reveal is about 2:48 into this scene:



    The girl is Donna Douglas who later became famous as Elly May Clampett on The Beverly Hillbillies.
     
  11. cynthiag

    cynthiag Active Member

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    We didn't have a t.v. in my house until I was 8 or 9 years old and I can't imagine that my parents would have watched Twilight Zone, much less let me watch it as a young kid, but I've caught up with pretty much all the old episodes over the years and I still find some of them pretty effectively creepy!
     
  12. zddoodah

    zddoodah Well-Known Member

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    That's not correct. The whole point of a motion to quash is to allow a challenge to the court's jurisdiction, including defects in the manner of service.

    Also incorrect. The term "personal service" refers to service pursuant to section 415.10 of the Code of Civil Procedure ("CCP"): "A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served." Leaving the summons and complaint with anyone other than the defendant is not "personal service."

    It's also not "sub-service" (i.e., substituted service) pursuant to CCP 415.20. Sub-service at a defendant's residence requires that the summons and complaint "be served . . . at the person's dwelling house [or] usual place of abode . . . in the presence of a competent member of the household." If sub-service is made on a defendant at his/her "usual place of business, or usual mailing address other than a United States Postal Service post office box," then the summons and complaint may be left with "a person apparently in charge of [the defendant's] office, place of business, or usual mailing address other than a United States Postal Service post office box." Also, sub-service is not complete until ten days after the process server thereafter mails "a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left." Valid sub-service cannot be made on a service provider such as a pet sitter, a plumber, a maid, etc.

    To the OP: Again, notwithstanding the legalities, since you received actual notice, fighting this may be a waste of everyone's time and money.
     

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