Service of a summons and complaint in California by publication is the topic of this blog post. Code of Civil Procedure section 415.50 authorizes service by publication if certain strict requirements are met. A summons and petition in a dissolution (divorce), legal separation or nullity proceeding in California can also be served by publication.
It should be noted that service by publication should only be used as a last resort in cases where a defendant or respondent truly cannot served in any other authorized manner. One of the biggest drawbacks to service by publication is the cost which in most cases will equal or exceed $500.00 or more! Anyone considering requesting service by publication should consider retaining an experienced “skip tracer” to locate the defendant or respondent as the fee will almost surely be much less than service by publication.
Another drawback is that the defendant or respondent may file a motion to vacate any judgment even years after the judgment is entered and may stand a good chance of having their motion granted if they can show that the plaintiff or petitioner failed to exercise reasonable diligence in attempting to locate them, committed perjury in obtaining the publication order or submitted a defective affidavit or declaration.
The first requirement that must be met is that the plaintiff or petitioner must submit an affidavit or declaration under penalty of perjury showing that the defendant or respondent cannot, with reasonable diligence, be served in another authorized manner that a cause of action exists against such person or that person is a necessary or proper party to the action. See Code of Civil Procedure § 415.50(a)(1).
It should be noted that even a verified complaint or petition for dissolution or other family law proceeding is not a substitute for the required affidavit or declaration establishing that a cause of action exists against the defendant or respondent. See Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42, fn. 9 (dissolution case.)
Alternatively the plaintiff can submit an affidavit or declaration stating that the party to be served has or claims an interest in real or personal property in California that is subject to the court’s jurisdiction, or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property. See Code of Civil Procedure § 415.50(a)(2).
Note that service by publication is the least likely method to give a defendant or respondent actual notice of the proceeding (it essentially imparts only what is known as “constructive” notice). Thus the “reasonable diligence” required is much more burdensome than that which would allow for substitute service under Code of Civil Procedure § 415.20.
Essentially section 415.50 authorizes only a last resort form of service where the whereabouts of the defendant or respondent are unknown and he or she has no known fixed location where service in another authorized manner can be performed.
An order permitting service by publication may not rest simply on the alleged “actual ignorance” of the whereabouts of the defendant or respondent. Rather, courts “necessarily” must require a showing of exhaustive attempts to locate respondent. Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41-42; see also Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392-1393 (distinguishing less onerous “reasonable diligence” for substitute service).
The fact that a defendant or respondent cannot be physically located does not mean there is no available alternative method of service. For example, where respondent has a known post office box, “reasonable diligence” to effect service other than by publication requires attempted Code of Civil Procedure § 415.30 service by mail at the P.O. box; otherwise, an application for published summons is “defective as a matter of law.” Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746–though D was unlocatable, P knew D’s post office address and that his mail was being picked up there.
The supporting declaration(s) attesting to the efforts made to locate the defendant or respondent and to effect alternative service must be executed by persons with personal knowledge of the facts such as the process server and/or attorney who conducted the search and submitted to the court in application for an order authorizing service by publication. General allegations and conclusions that the defendant or respondent cannot be found are insufficient. Olvera v. Olvera, supra, 232 Cal.App.3d at 42-§ 415.50 affidavit must establish requisite reasonable diligence by “probative facts” based on personal knowledge; see also Transamerica Title Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 742-743–declaration stating “Defendant’s address unknown” defective “as a matter of law”.
Note that submitting defective reasonable diligence declarations can have serious consequences even if the Court orders service by publication.
Unless an affidavit or declaration is submitted demonstrating on personal knowledge that a plaintiff or petitioner exercised the requisite reasonable diligence to locate respondent, a judgment based on published service is void and subject to direct or collateral attack. Olvera v. Olvera, supra, 232 Cal.App.3d at 41,–defaulting respondent’s actual knowledge of action from another source does not preclude seeking Code of Civil Procedure § 473.5 set-aside relief; see also Transamerica Title Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 746 –trial court has “legal duty” to vacate default entered after invalid service by publication.
The court order authorizing service by publication must direct summons to be published in a named California newspaper most likely to give defendant or respondent actual notice and, if defendant or respondent resides out of state, may also order publication in a named newspaper outside California that is most likely to give actual notice. The court’s order must further direct that a copy of the summons, complaint or petition and order for publication “be forthwith mailed” to defendant or respondent if his or her address is ascertained before expiration of the time prescribed for publication. Code of Civil Procedure § 415.50(b); see Olvera v. Olvera, supra, 232 Cal.App.3d at 42-43 –selection of Riverside newspaper for publication failed “most likely to give actual notice” standard where Ps admitted D no longer resided in Riverside and received mail elsewhere.
Publication must occur at least once a week for four successive weeks (unless the court, in its discretion, orders a longer period). Generally, five days should elapse between the successive publication dates. Code of Civil Procedure § 415.50(b); see Government Code § 6064.
An order for publication does not preclude service in another authorized manner. If alternative service is made during the publication period, published summons is superseded. Code of Civil Procedure § 415.50(d).
Service by publication is deemed complete, and the 30-day response period commences to run, on the 28th day following the first day of publication (inclusive of the first day). Code of Civil Procedure § 415.50(c); see Government Code § 6064.
However, the response period may begin sooner if another authorized manner of service is performed in the interim.
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