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LEGAL VIEW / JEFFREY S. KLEIN

Various Ways of Serving Summons

December 06, 1990|JEFFREY S. KLEIN

Question: Someone is trying to sue me in small claims court for an amount he says he overpaid me in connection with a real estate loan almost four years ago. His suit is against both me and my partner. But I thought he had to personally serve us with legal papers. I was out of town, and he simply left them for me at my place of business. That's not good enough, is it? Do I still have to show up in small claims court?

--N.K.

Answer: There are basically three valid ways a plaintiff can serve a small claims suit on a defendant, and it doesn't sound like the person suing you did any of them properly. Nevertheless, you may want to consider going to court anyway to make sure that a default judgment is not entered against you.

Let me explain. The three approved ways to bring you into the suit as a defendant are: personal service, service by certified mail, and substituted service.

Personal service means just that. An adult, who is not the person bringing the suit, hands the "Claim of Plaintiff" to you and you've been served. You now have a legal obligation to show up in court on the designated date to defend yourself, or you will lose simply because you don't show up--that's what I referred to above as a default judgment. It's not effective personal service to leave the papers at your job, in a mailbox or with a friend.

FOR THE RECORD
Los Angeles Times Thursday December 20, 1990 Home Edition View Part E Page 8 Column 3 View Desk 2 inches; 57 words Type of Material: Correction
In this column (Legal View) two weeks ago, it was incorrectly reported that to use the method of substituted service in small claims court, a plaintiff must first use "due diligence" in trying to personally serve a defendant. In fact, in small claims court, the substituted service method described in the column may be used without first attempting personal service. See Code of Civil Procedure section 116.3.

You can also be served by certified mail. The plaintiff pays the clerk of the court a modest fee for the mailing. The service is only effective, however, if the defendant actually signs for the letter showing that it has been received.

A third method of service is called substituted service and is allowable "if you try to serve a defendant and fail," according to the applicable state statute. You have to first use "reasonable diligence" to try and serve the defendant personally or by certified mail.

If that fails, then you can use this somewhat complicated alternative method, as explained by Ralph Warner in his book "Everybody's Guide to Small Claims Court": Leave a copy of the summons and complaint at the person's dwelling place in the presence of a competent member of the household who is at least 18 years old and who must be told what the papers are about and thereafter mail a copy of the summons and complaint by first class mail to the person served. Service is complete 10 days after mailing.

Now comes what Warner describes as a Catch-22. Even if service is ineffective, he advises that you should show up on the date specified or at least call the court clerk to explain that you were not properly served--to avoid the possibility that the court will enter a default judgment against you. (The plaintiff may testify that you have been served either because he doesn't understand the legal technicalities or isn't completely honest.) You might also try writing the plaintiff explaining that you have been improperly served. You could also use that occasion to suggest a settlement of the case to save both of you the time and headache of going to court.

By the way, the statute of limitations for most written contracts is four years in California, so you will want to review the contract, if there was one, that is the basis for this suit. His failure to bring a timely suit might be a possible defense--assuming you ever get to the merits of the case in front of a judge.

Klein, an attorney and assistant to the publisher of The Times, cannot answer mail personally but will respond in this column to questions of general interest about the law. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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