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Improperly served?


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I have a question regarding being served at a mailbox center. I'm already in the middle of my case, filed answers, discovery, etc. and the court date is not for a few months, but I flashed on something recently about how I was served. One day, late last year,  I find a summons in my mailbox. When I asked the owner "when did this arrive?" he answered in very broken and hard to understand English "I don't know". I asked it in different ways, even asked if he signed for it or do you have anything showing that you signed for it, and he said he doesn't know anything about it.

Back then I was thinking I was improperly served, but never went further with it, and moved forward with filing an answer about 4 weeks later. In the meantime, during which I kept checking online at the case summary, and noticed they still had not filed proof of service, nor sent me anything (including a copy of the summons). Obviously they were hoping I would never see the summons. Bottom line, 6 weeks later, they finally filed their proof of service (2 weeks after I filed my answer).

Here is what I just realized/discovered. I see here (below) in California http://www.creditinfocenter.com/legal/process-service-requirements.shtml

2. 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 of the complaint at such 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 of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Amended by Stats. 1989, Ch. 1416, Sec. 15.)

 

 

1. They never sent me a copy of the summons (note the highlight in yellow stating they have to do two steps "and by thereafter mailing a copy...."
2. It states,  that it is only "DEEMED COMPLETE" ...  on the 10 day AFTER MAILING.

What I'm asking is... If they never sent me a copy as well as dropping it off at the mailbox center, isn't this summons (and/or this case) "deemed incomplete" if they never "completed" the process of serving me .  Furthermore, when I show up in court, can I ask to see the proof, or certified mail showing they adhered to the rules of the court and actually sent this, and if they can't prove that they did, can I have this case dismissed because I was served improperly (even though I realize they can file again) or is it too late to bring this up?

 

sorry for the long explanation.... and thanks in advance for your feedback.

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11 hours ago, stevelake said:

Back then I was thinking I was improperly served, but never went further with it,

There are 2 problems.  The first is you are reading part of the statute and trying to apply it to your circumstances which won't work.  Basically they CAN mail it if they cannot serve you personally they are not required to mail it and the problem you have is the one they left at the mail drop box DID get to you and you know about the suit.  Which leads into the second problem:  you haven't been prejudiced by this method even if it falls into a grey area because you are deep in the litigation process.

My guess is that even if you protest the service the best case scenario is that the court dismisses the case and it is immediately refiled but more likely the judge will rule clearly you know about the suit as you are defending yourself so service was proper.  

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I'm aware they don't have to mail it, UNLESS they served me by dropping it off at the mailbox center, as they did, then, at that point they have to follow it up by mailing a copy of the complaint to me as well. Both things have to happen (see the yellow highlight part above) and they only did one. Secondly, as I mentioned, I'm aware they can refile, but I actually want that to happen (I'm not going to go into it, but it will help me if they are forced to refile). Also I'm aware that the first one they dropped off got to me, but the law states they have to follow it up, my question is.... did they follow the law (highlighted in yellow) or not?

Thank you.

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@stevelake for future reference, these threads might help. http://www.creditinfocenter.com/community/tags/motion%20to%20quash/ you can also research caselaw at google scholar and such for those statutes to get an idea where this would lead. They could have mailed service and it just got lost in the mail. They don't have to send certified or anything with tracking, just plain first class mail. Your physical case records at the courthouse would have the detail. The online detail doesn't update in real time possibly, so you can't rely solely on that. If you really put in the effort I guess you could get their office mailing records since you're doing discovery.

The time to do this to quash or continuance is before you answer though. You're well into this now. Complaints about sewer service to the Ca Atty General would be the more appropriate angle after you do your research.

 

 

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1 hour ago, stevelake said:

Also I'm aware that the first one they dropped off got to me, but the law states they have to follow it up, my question is.... did they follow the law (highlighted in yellow) or not?

Thank you.

They didn't. I'm dont think the way they delivered the first copy (to a mailbox center) was proper, and if they didn't mail you a 2nd copy then they definately didn't complete the service (unless it was lost in the mail). What did the online case file entry say about service? Personal? Substitute?

Anyhow, even though the service appears to have been improper, it doesn't appear you were prejudiced by it, as Clydesmom states above. You found out & filed an answer, and now you are engaged in discovery. If they had obtained a default judgment via faulty service, then you'd definately have recourse, but I don't know if there is anything to fight here, since you answered.

It would be worth bringing up in a trial brief, but I think your time would be better spent continuing to study/prep your defense.

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first, I want to thank everyone for their input and well thought out answers. It seems from the above statements, I should let it go, but as RyanEX stated above, maybe I'll bring in up in a trial brief. The reason I wanted to know if it was legal or not, is because, if I definitely was not served properly, I could then bring that up to the judge along with my other defenses, and if the judge is teetering on a ruling, maybe it's one more thing to rule in my favor. In other words, if the judge is somewhat on my side, but can't really rule in my favor, because there is nothing he or she can hang their on, except for something that actually went against California law , then maybe this would help me in the end. I would think if the plaintiff did NOT follow the law, then whether or not I brought it up early enough, should not matter, because it is still is a part of this case as a whole.... and against the law, is against the law... isn't it? or am I wrong?

 

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The plaintiff (assuming it's a jdb) will do plenty that is against CA law, and will have a hard time proving anything in accordance with the rules of evidence and authentication (which is where you should focus).

You answered the complaint and knew about the case, so you weren't damaged by lack of service. If you missed a trial date or went to default because of it then that would be a different story.

I wouldn't worry about the service,  fight the case, and object to the evidence.

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