Legal Question in Civil Litigation in California

illegal Process Service of a Civil Summons

On February 12, 2002, my pastor's wife accepted and summons from and process server who stated was Billie Hodge home. Billie Hodge is her husband. She said she accepted it because she thought it was for her husband...She called him and then he called me.

He thought he was being sued by this man. I asked to see the summons because I had just been given a judgement for wages owed by the Labor Commission.

When I read the summons I found out that the summons was for me.

The plaintiff knows were I live. The summons was served in San Bernardino at a home which is not by residence. My residence is in Riverside. I have the letter from the Labor Commmissions that was sent to this individual and I that clearly shows both of our addresses.

I am retired and don't have much money can I file a motion to dismiss the Process of Service because of this. And if so is there a form I can use.

Asked on 2/26/02, 8:54 pm

4 Answers from Attorneys

Victor Hobbs Victor E. Hobbs
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Re: illegal Process Service of a Civil Summons

There are no simple forms for the motion you are inquiring about. And after you do all the work to set aside the service. You'll be served in the court, and will have accomplished nothing.

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2/27/02, 9:24 am
Larry Rothman Larry Rothman & Associates
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Re: illegal Process Service of a Civil Summons

It is normally a waste of time and money to fight service of process. I suggest you just repond to the complaint. If you fax me your documentation, any letters your received and a copy of the Summons and Complaint, I will provide you with free consultation and tell you what I would charge to represent you. 714 363 0229

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2/27/02, 8:14 pm
Robert Mccoy Law Office Of Robert McCoy
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Re: illegal Process Service of a Civil Summons

You have been served. The end. You now must respond to the complaint or they will get a judgment against you--if they haven't already. You better get an answer to the court quick! You can call the court to see if a default has already been entered. If it has you need to file a motion to set aside the judgment claiming you did not respond in time because of your excusable neglect because you thought the summons was for someone else.--The court can deny this request, so you want to file an answer if at all possible.

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2/26/02, 9:04 pm
Robert Miller Robert L. Miller & Associates, A Law Corporation
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Re: illegal Process Service of a Civil Summons

Thanks for your posting. The purpose of service of a summons and complaint are so that you know that a case has been filed against you, and what your rights are in responding. The law allows someone above the age of 18 who states they know you to be served on your behalf.

The "Catch-22" with judges is that once you show up and object to the service, or file any documents or motions declaring service was invalid, you are stating you know about the lawsuit. I've made many civil appearances where parties representing themselves have engaged in long diatribes with the judge about how service was "improper", only to have a judge say "you're here, right? Okay, you're served. Let's proceed."

The applicable code section is part of the Code of Civil Procedure, which states as follows:

"If a copy of the summons and of the 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.)

If you have other questions, I'm happy to help in any way that I can. Please feel free to email me back.

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2/26/02, 9:05 pm

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