Service by Substitution in California

Section 415.20 (b) of the California Civil Code Of Procedure States: If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

Most process servers understand dwelling house or usual place of abode to mean the actual place where the person is currently staying. It has, however, been our experience that this means the official residence or place where the person is currently staying. We have found that most courts consider the dwelling house to be where the person is currently staying and the usual place of abode to mean the persons permanent residence, ie: the person lives with his parents but is currently away at school. The persons dwelling house would be where he is currently staying while in school and his usual place of abode would be his parents house where he returns on vacations and when school is on break and where he expects to return when he finishes school. The same applies if the person is currently in the hospital, away on a business trip or is on a vacation.

Usual place of business can mean different things. Say a person works every day in a factory on 8th St., that of course would be a usual place of business. Say a Doctor is on staff and shows up for work regularly at ABC Hospital. He also rents office space from a doctor's group at another location where he also sees paitents. It has been our experience that both places could be considered the Doctors usual place of business.

Usual mailing address other than a United States Postal Service post office box. Usual mailing address can be a private mail box service or any other place (Other than a U.S Post Office branch.) that the subject uses as a mailing address. This does not mean that the person must actually pick up or receive the mail. It only means that the person must use the address as a mailing address. Some people in order to evade creditors or others give out mailing addresses but never pick up the mail. If a person directs people to send that person's mail to a certain address then that address can be considered a usual place of mailing as the server would have no way of verifying that the mail is actually picked up.

Competent member of the household does not mean family member. It means anyone who resides at that residence, including full time live in nannys, maids, gardeners, friends, etc.. As long as the person resides ther full time they can be considered members of the household.

Person apparently in charge does not mean, as some process servers believe, a manager or officer of the business or place of mailing. It means "the person apparently in charge. If, at an office, the receptionist will not let the process server see anyone else in the office, then the receptionist is the highest person in charge that the server can serve. If the only person who works at a mail box service says that he or she is only a clerk, that person is still the person apparently in charge.

Serving a complaint in a gated community or security building where the security guard will not allow entrance. On May 28, 1992, in the case of Robert Bein vs Bechtel-Jochim, the California Court Of Appeals held that a guard gate does constitute part of the dwelling and therefore the guard is a competent member within the dwelling. The court reasoned that if a process server is not permitted to proceed to the actual residence, then the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server's progress is arrested.

Reasonable diligence has been interpreted differently in different jurisdictions, however, we have found that if three attempts are made at least eight hours apart and if at least two of those attempts are made at the address wher the papers are served then a substituted service on the fourth attempt is usually considered valid.

The foregoing information is not given as legal advice. It is instead given as information and opinion gathered and developed through experience over the last thirty years. David Hallstrom is the owner of Hallstrom Detective Agency and although the agency no longer offers process serving services, it has, through it's servers, completed service of several hundred thousand legal documents. Although the author believes the information to be accurate no guarantee is made or implied.

Permission is given to reprint this article providing credit is given to the author, David G. Hallstrom, and a link is listed to Resources For Attorneys the owner of this article. Anyone or any company reprinting this article without giving proper credit and the correct link, is doing so without permission and will be subject to legal action.