Service of

Special Notice of Lawsuit

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Med-Legal, Inc.

 

 

 

 

(800) 244-3495

FAX (626) 653-5176

 

 

 

 

_______________________

 

June 2004

 


Disclaimer

 

 

The authors make no claim as to the legality, accuracy or authenticity of the content.  The reader should consult original authoritative sources.  It is sold or distributed with the understanding that the authors, Med-Legal, Inc. and publisher are not engaged in rendering legal advice or other professional service.  If legal advice or other expert assistance is required, the services of a competent attorney should be sought.

 

The content does not define or establish any standard or duty.

 

 

 

ă Copyright 1996 - 2004

Med-Legal, Inc.

 

 

All rights reserved.

 

No portion of this book may be reproduced without the expressed permission of the authors.

 

 

 

 

Service of SNOL.doc

 


 

Contents

 

Disclaimer. 1

What is the Special Notice of Lawsuit 1

Step 1. Determine the Correct Name of the Employer and the Type of Legal Entity. 2

Step 2. Prepare the Special Notice of Lawsuit and Proof of Service. 2

Step 3. Serve Documents. 3

Individual 3

Who Can Be Served. 3

Methods of Service. 3

Personal Delivery. 3

Substitute Service. 4

Mailbox Service. 4

Mail and Acknowledgement of Service. 5

Certified or Registered Mail Outside State. 5

Publication. 5

Corporation. 6

Who Can Be Served. 6

Methods of Service. 7

Personal Delivery. 7

Mail and Acknowledgement of Service. 9

Certified or Registered Mail Outside State. 9

Publication. 9

Defunct Corporations. 9

Suspended Corporations. 9

Shareholders of Corporation. 9

Business Entity Unknown. 10

Limited Liability Company. 10

Partnership. 10

Step 4. Complete Proof of Service. 10

Proof of Service (POS) 10

List all documents that were served. 11

Correct Name of Person or Entity Served. 11

Name of Person Documents Delivered To. 11

Address. 11

Manner of Service. 11

“Notice to the Person Served” Declaration. 11

Person Serving. 12

Declaration Checked. 12

Date and Signature. 12

Step 5.  File SNOL and Proof of Service with the WCAB.. 12

SERVICE OF PROCESS TABLE.. 2

 


 

What is the Special Notice of Lawsuit

 

The Special Notice of Lawsuit (SNOL) is used in a workers’ compensation case.  An injured worker whose employer was illegally uninsured can get compensation from the State of California Uninsured Employer’s Fund (UEF).  UEF has no liability to pay until either the employer has been served with the Application for Adjudication (application) and the Special Notice of Lawsuit (SNOL).

LC §3716

The Special Notice of Lawsuit (SNOL) is used in workers’ compensation cases to obtain jurisdiction over an illegally uninsured employer.  It is a form that is served on the employer.

See “How to Properly Obtain Jurisdiction Over an Uninsured Employer In Workers’ Compensation Cases” 12 WC Quarterly summer 1999 No. 2; http://www.dir.ca.gov/DWC/uefcomp.pdf

The special notice of lawsuit (SNOL) is equivalent to the summons in a civil case.  The SNOL must be on the form issued by the board and contain at least the information and warnings required by the Code of Civil Procedure for a summons.

LC§3716(d); CCP§412.20; §10500

Service of the application and SNOL is sufficient to obtain jurisdiction.  Other documents that must be or should be served may be served later by mail once jurisdiction is obtained.  But if the other documents are available at the time of service all the other documents should be served along with the SNOL to eliminate any question as to whether or not the documents were served.

LC§5316, Code of Civil Procedure §1013

Make sure all case numbers are listed on the SNOL and that the names of individuals and companies are exactly the same as on the Application for Adjudication.

 

Make sure the notice to the person served is completed correctly.

 

The special notice of lawsuit and application are served the same way as a summons is served.

LC §3716(d)(1) “The application and special notice of lawsuit may be served, within or without this state, in the manner provided for service of summons in the Code of Civil Procedure.”

In a civil action the summons and complaint must be served within 3 years of filing (case is dismissed) and must be returned within 60 days of service. “Returned” means POS is filed with court. But this does not apply to a workers’ compensation case.

CCP§583.210, 583.250; Smith v. WCAB 66 CCC 1575

 

 

“Thereafter, an employer, alleged to be illegally uninsured, shall notify the appeals board of the address at which it may be served with official notices and papers, and shall notify the appeals board of any changes in the address. No findings, order, decision, award, or other notice or paper need be served in this manner on an employer, alleged to be illegally uninsured, who has been served as provided in this section, and who has not filed an answer, otherwise made a general appearance, or furnished the appeals board with its address.”

LC § 3716(d)(1)


 

Step 1. Determine the Correct Name of the Employer and the Type of Legal Entity

 

Determine correct legal name and business form of employer & dba

 

The applicant must identify a legal person or entity as the employer and the exact name must be determined.  Legal entities are: individual, corporation, partnership, and limited liability company.  There are other legal forms of entities but these are the most common.

supra

Do this by searching the secretary of state web site to determine if the employer is incorporated or is a limited partnership or limited liability company.  If the employer is listed the secretary of state site will show the correct name of the company and the agent for service of process.

 

If the employer was not found then search for fictitious names on the county web sites.  If still not found use various other web sites to search for the employer.

 

Check with the California Secretary of State to determine if the business is incorporated and to find the exact name of the employer.

http://kepler.ss.ca.gov/list.html

 

Check with county clerk of all surrounding counties for fictitious name.  Example: ABC, Inc., a corporation, dba Acme Box Company.  The dba (doing business as) is the fictitious name.  ABC, Inc. is the legal name.

www.GetRecords.com

See links

Once the correct name and form of business entity is determined make sure the application and SNOL has the correct name.  If the name doesn’t match it is necessary to amend the application.

 

Step 2. Prepare the Special Notice of Lawsuit and Proof of Service

 

The official board form must be modified to add, “Notice to Person Served.” The SNOL board form must be modified to have the notice to person served to show in what capacity they are being served and on whose behalf he or she is being served.

 

The SNOL must be on a form approved by the board and contain all the information that is on a summons in a civil case. Since the board has not updated the form to keep up with the information on the summons the form must be modified.

LC§3716(d)

Although a summons is “issued” by the court clerk the attorney prepares it.  A SNOL is not issued by the WCAB.  The attorney or attorney service prepares it.

 

Make sure application and Notice of Special Lawsuit and proof of serve all have the exact legal name and are spelled identically on each document.  If the name of the employer is not correct on the application ask the attorney to amend the application to conform to the correct name on the Special Notice of Lawsuit before service.

 

Type of business should be identified, e.g. “John Doe, an individual dba Fast Window Washing” or “Acme Screw, Inc.”. If a corporation it should be so identified on Notice of Special Lawsuit and the application with the exact legal name as per the Secretary of State, e.g. “Acme Screw, Inc.”

 

The SNOL and application for adjudication must have a case number.

 

Serve the SNOL, application for adjudication and any other documents listed to be served.  All relevant documents should be served. In the space on the POS put, “See attached for list of documents served.” All documents that are to be served must be listed on an attachment. 

 

List all documents to be served.  Include all applications, amended applications, claim forms, venue, 4906(g) fee disclosure form, letters, choice of physician letters, medical reports, demand for vocational rehabilitation, vocational rehabilitation forms and petitions.

DeCosta v WCAB 64 CCC 434

Step 3. Serve Documents

 

Serve Special Notice of Lawsuit and Application for Adjudication.  This establishes jurisdiction.  Also serve all other documents such as medical reports and liens. 

 

If proper service issue is not raised at trial or on petition for reconsideration the issue is waived. Technical defects in the proof of service can be corrected.

 

The application and special notice of lawsuit may be served, within or without this state, in the manner provided for service of summons in the Code of Civil Procedure.

LC§3716(d)(1), CCP§415.10 et seq.

“The Constitution does not require personal service of summons in every case. Nor does it require, as a substitute for personal service, the method which is “most likely” to reach the defendant.  All that is required is a method reasonably likely to provide notice. (citations) If such a method is followed, due process is satisfied even if defendant did not receive actual notice of the proceedings.”

Civil Procedure Before Trial, The Rutter Group. 4:6

Process Server Completes Notice to Person Service

 

The bottom portion of the Special Notice of Lawsuit must have a section entitled “Notice to Person Served.”  This section must be filled in by the process server before it is given to the person being service.

 

Individual

 

If employer is an individual the person must be personally serve by any method for the service of a summons on an individual.

Yant v. Snyder & Dickenson 47 CCC 254; CCP§415.10

Who Can Be Served

 

Only the individual can be served

 

Methods of Service

 

Personal Delivery

 

Deliver to person to be served. POS 3.a.(1) and (2)

CCP§415.10

There is no requirement that the process server identity himself or herself to the person being served or disclose the nature of the documents being delivered for personal service.

Civil Procedure Before Trial CEB §24.26

If actual delivery is not possible (refused to open door or take documents) it is sufficient if the process server reasonably attempts to make actual delivery and the documents are left in as close proximity to the person as is feasible and the person is made aware of their location and the nature of the documents.

Civil Procedure Before Trial CEB §24.27; Trujillo v. Trujillo 71 CA2d 257

A registered process server must be allowed to enter a gated community where a guard prevents access or other security personnel assigned to control access to the community.  The process server must show evidence that he or she is a registered process server. The assistance of the local police may be necessary.

CCP§415.21

Can leave papers with a guard to a gated community or a doorman to apartments who will not allow entry (a person apparently in charge.)

F.I. duPont, Glore Forgan & Co. v. Chen cited in Bein v. Bechtel-Jochim Group, Inc. 6 Cal.App.4th 1387

Access to gated community.

CCP§415.21

A prisoner can be served by delivering the documents to the sheriff or jailer who in turn must deliver the papers to the prisoner.

Pen Code §4013

Substitute Service

 

If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served, the SNOL and application may be served by leaving a copy of 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 documents were left. Service in this manner is deemed complete on the 10th day after the mailing. POS 3.b.(2) and (3) and (4)

CCP§415.20; 416.60 – 416.90; Long Beach Acceptance Corp. v. The Superior Court of Orange County 2001 Cal.App.Lexis 1507 (np); Burchett v. City of Newport Beach 33 Cal.App.4th 1472 (no due diligence)

There must be reasonable diligence. Must make two or three attempts to serve.  Attach a declaration of due diligence. POS 3.b. (5)

Espindola v. Nunez 199 Cal.App.3d 1389

Attach a declaration of mailing to the proof of service. POS 3.d.

 

Must inform person to whom papers delivered that the papers are a Special Notice of Lawsuit and an Application for Adjudication of a workers’ compensation claim.

CCP §415.20; Civil Procedure Before Trial CEB §24.27; Khourie, Crew & Jaeger v. Sabek, Inc. 220 Cal.App.3d 1009 (Women would not open door and stated she was “not accepting the papers.” Papers left outside the door and informed women they were summons and complaint and were also mailed to the address);  Trujillo v. Trujillo 71 CA2d 257 (process server attempted to inform defendant of nature of documents through window of defendant’s car and placed papers under windshield wiper.)

If the papers are left at a business or residence there must be facts on the proof of service that demonstrates the connection to the defendant/employer.  For example, a sign on the business that is defendant’s name or a person apparently in charge says that defendant is the owner or a person at the house says she is defendant’s mother and that he lives there or the postal service indicates that is the correct name of the defendant (usual mailing address).

Corcoran v. Arouh 24 CA4th 310; CCP §415.20

Must make two or three attempts to service.

Espindola v. Nunez 199 Cal.App.3d 1389; Bein v. Brechtel-Jochim Group, Inc. 6 CA 4th 1387; Stafford v. Mach 64 CA4th 1174 (default upheld for $440,000 after sub serve)

Mailbox Service

 

If after reasonable diligence any person using a mailbox receiving service can be served by serving the commercial mail receiving agency (CMRA). The CMRA then mails the documents to its customer and issues a certificate of mailing.  Ten days after mailing, service is completed.

B&P§17538.5

The process server should do the following:

1. Inform the person in charge of the CMRA that the CMRA is the agent for service of process for their customer and hand them a copy of the NOTICE TO COMMERCIAL MAIL RECEIVING AGENCY (CMRA).   (see below).

2. Inform the person in charge of the CMRA that that their customer is hereby served - handing them the papers.

3. Inform the person in charge that the CMRA is required by law to put the papers in the customer’s mailbox (if it's still active) and to mail the papers to the customer’s last known home or personal address within five days.

4. Inform the CMRA that unless the CMRA signs a declaration of mailing (that we have prepared) and gives it to our process server the CMRA is liable for the failure to act as the agent for service of process.

 

Where a defendant’s only known address is a post office box number the defendant can be served by substituted service at the post office box.  But this cannot be done if the post office box is a United States Postal Service post office box.

CCP§ 415.20; Ellard v. Conway 94 Cal.App.4th 540, 114 Cal.Rptr.2d 399

 

Mail and Acknowledgement of Service

CCP §415.30

Mailing Notice and Acknowledgment by First Class Mail.

Person to serve accepts by signing Notice and Acknowledgment form and sending it back. If person to be served refuses or fails to sign there is no service. This method usually doesn’t work and is a waste of time.  Use this only as a last resort. POS 3.c.(3)

CCP§§415.30, 2010

Certified or Registered Mail Outside State

 

If the individual is a resident of another state other than California the person can be served by first-class mail, postage prepaid, requiring return receipt to be signed for by the addressee only.  Print on the green card that it must be signed by addressee only. POS 3c.(4)

CCP§415.40

Proof of service shall include evidence satisfactory to the board establishing actual delivery to the person to be served, by a signed return receipt or other evidence.  Return-receipt does not have to be signed by the person to be served but if he or she didn’t sign the receipt there must be some evidence that the person who did sign had authority to accept service on behalf of the person to be served or there is some other acknowledgement that it was actually received.

CCP§417.20, Dill v. Berquist Construction Co. 24 CA4th 1426, 29 CR2d 746; CEB Civil Proc. Before Trial §24.37; Civil Procedure Before Trial, The Rutter Group §4:145 (agency cannot be proved by agent’s statement alone. Must be addresses to someone upon whom service could be made on the corporation’s behalf.)

Make sure the agent box was checked.  A statement can be added to the green card before it is sent, “By signing this card the signer acknowledges that he or she is authorized to accept service of process on behalf of the addressee.”

 

Service by mail is allowed for person outside the United States.

Denlinger v Chinadotcom Corp. (2003) 110 CA4th 1396

Cannot serve a resident of this state by simply mailing him or her to documents.  Service by mail only applies to out-of-state residents.  A resident of the state of California can be served by mail if they agree to accept service and sign and return a Notice and Acknowledgement of Receipt that he or she is accepting service.  See section below.

 

Publication

 

Can serve an individual by publication if employer can’t be found.

CCP§415.50, LC§5316

Must do due diligence search for employer.  Do search of all skip trace web sites and information databases.  Check the telephone information.  Check post office for forwarding address. Mail Notice and Acknowledgement of Receipt; check any state licensing agents.  Have process server go to all last known addresses and inquire of occupants and neighbors.

 

Declaration of due diligence for publication: Attempt service by personal service at last known address and business; substituted service; and notice and acknowledgment.  Check with neighbors; telephone books; contract licensing agencies; co-employees; dept of corporations; internet search companies.

 

Then prepare and take to a judge: (1) ex parte petition to publish, (2) declaration of due diligence, and (3) order for judge to sign. Then send order to publish, Application for Adjudication, Notice of Special Lawsuit, and any other documents to newspaper for publication( in Los Angeles Daily Journal or Metropolitan News 213-628-4384) to be published once per week for four weeks. File proof of publication and lien with board. Costs about $150-200 to publish.

CCP§415.50

“As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require that a search be conducted of public databases where access by a registered process server to residential addresses is prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles.”

CCP§415.50(d)

Service by publication should be a last resort.  If an address is known try harder to affect service by one of the other methods.

 

The special notice of lawsuit, the latest amended application, claim form, venue statement and any notice of hearing should be published because these documents cannot be mailed later.

Parish v. Peters 1 Cal.App.4th 202 (must publish statement of damages in civil case or cannot take default.)

In a civil case must also include statement of damages under CCP §425.11 as the documents being served by publication.  Good practice is to include in the exparte request to publish that the statement of damages is also being serve.

Anastos v Lee 118 Cal.App.4th 1314

Corporation

 

Again, make sure the legal name as listed by the Secretary of State is exactly the same on the application for adjudication, special notice of lawsuit and proof of service.  If the name on the application for adjudication is not correct it must be amended.

http://kepler.ss.ca.gov/list.html

 

Who Can Be Served

 

A summons may be served on a corporation by delivering a copy of the summons and of the complaint:
(a) To the person designated as agent for service of process …;

(b) To the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process;

 

The secretary of state can be served if the corporation has failed to file the required list of corporate officers or after due diligence you cannot serve any of the officers and agents for the corporation.  Need to do an exparte motion and get an order from the board.

CCP§416.10(d), Corp C§§1702, 2111; CEB Action Guide – Handling Service of Process page 18-19

Methods of Service

 

Personal Delivery

CCP§415.10

Delivery documents to be served to those authorized to be served.

 

Who to serve for organization: Can serve agent for service of process; corporate officer, general manager, person authorized by the corporation to receive service of process. Corp officers are president, vice president, secretary or assistant secretary, treasurer or assistant treasurer, and general manager.

CCP§416.10-50, CCP§416.10(b); Corp C§1700-1701, 2110-2110.1

www.ss.ca.gov/

Check with secretary of state for names of persons who can be served on behalf of corporation.

Secretary of State 916-445-2900

California Secretary of State. 415-538-4154

Corporate Filing and Service Division

1500 11th Street

Sacramento, CA 95814

 

Attach to the proof of service a copy of the certificate of the corporate showing the officers or the agent for service of process or a print of the Secretary of State web site showing the agent for service. This is proof that the person served was authorized to accept service on behalf of the corporation.

Corp C §2110

An out-of-state corporation is served by delivery to the agent for service of process.

Corp C §2110

Agent may be any person designated by the corporation or CT Corporation System. If CT Corporation System can deliver to 818 W. 7th Street, Los Angeles, CA 910017, 213-627-8252

CorpC§1701, 1503-1504

(CT Corp charges the corporation $255 per year for this service)

Note that if corporation has no assets that shareholders with more than 15% interest shall be jointly and severally liable for benefits paid by UEF.  UEF must then join (amend application) and serve these shareholders.  This is not done by the applicant.

LC§3717

Person at business refused to open the door and refused to accept the papers and refused to give her name so the process server left the documents outside door and told person inside. Service was good.

Khourie, Crew & Jaeger v. Sabek, Inc. 220 Cal.App.3d 1009; In re Ball 2 Cal.App.2d 578 (person refuse to take the papers so process server threw papers that landed a few feet from person. Service good.); Ludka v. Memory Magnetics International 25 Cal.App.3d 316 (papers left on coffee table near receptionist)

Substitute Service

 

In lieu of personal delivery of a copy of the summons and complaint to the person to be served for … [a corporation], a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 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. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

CCP§415.20(a), 416.10  Dill v Berquist Construction 24 CA4th 1426, 29 CR2d 746; Mercier v. WCAB 24 CWCR 45; In re Ball (1934) 2 Cal.App.2d 578; “In Ludka v. Memory Magnetics International, supra, 25 Cal.App.3d 316, a default judgment was upheld against the argument that it should have been set aside because service of process was faulty. In that case the process server entered the defendant's offices and, unable to obtain access to a corporate officer, threw the papers on a coffee table saying "'You're served.'" Copies of the summons and complaint were thereafter sent to the defendant. The defendant argued that service was improper because the receptionist, upon whom service ostensibly was made, was not then his secretary nor an agent for service of process on the corporation, and because a third party in the reception area, declaring that service had not been made, threw the papers into the wastebasket. It was held that the service of process "amply complied" with section 415.20 and that the gratuitous actions of the third party did not render service ineffective.”

The proof of service must state that the party being served is the corporation but that the service was on a named person who is one of those persons that can be served on behalf of the corporation.  That named person can be served by substituted service.  It should be made clear on the proof of service that the person being served is the name of the person authorized by law to be served on behalf of the corporation.  Delivery may be made to a secretary or a receptionist or a member of the household whose name is put on the proof of service but the person being served is the one associated with the corporation. 

 

For example: The party being served is ABC, Inc. The person being served is John Sullivan, the president of ABC, Inc. by leaving the documents with Mary Smith the secretary to John Sullivan and person apparently in charge at John Sullivan’s office during business hours and person apparently in charge  and, thereafter, mailing the documents by first-class mail, postage prepaid to John Sullivan at the address of the office.

 

In the above example Mary Smith is not the person being served.  It is John Sullivan.  Mary Smith does not have to be authorized to accept service. 

 

Can serve guard at business who will not allow entrance.

Bein v. Bechtel-Jochim Group, Inc. supra

Person at business refused to open the door and refused to accept the papers and refused to give her name so the process server left the documents outside door and told person inside. Service was good.

Khourie, Crew & Jaeger v. Sabek, Inc. 220 Cal.App.3d 1009; In re Ball 2 Cal.App.2d 578 (person refuse to take the papers so process server threw papers that landed a few feet from person. Service good.); Ludka v. Memory Magnetics International 25 Cal.App.3d 316 (papers left on coffee table near receptionist)

A declaration of reasonable diligence is not required.

 

Mail and Acknowledgement of Service

CCP §415.30

See section for service on an individual.

 

Certified or Registered Mail Outside State

CCP §415.40

It is the applicant’s burden to show that person who signed receipts on behalf of foreign corporations were authorized to received service under CCP §41610.

Dill v Berquist Constr. Co. (1994) 24 CA4th 1426, 1440

Same applies as to service on an individual.

 

Procedures are similar to publication in that a court order is required. Then service is made by delivery to secretary of state. $50.00 fee.

Bill Jones, Secretary of State, State of California, Business Programs, Service of Process, 1500 11th Street, Room 390, Sacramento, CA 95814 (916) 657-2318

Publication

 

Cannot serve corporation by publication. You can serve the secretary of state if the corporation has failed to list corporate officers or after due diligence you cannot serve any of the officers and agents for the corporation.  Need to do an exparte motion and get an order from the board.

CCP§416.10(d), Corp C§§1702, 2111; CEB Action Guide – Handling Service of Process page 18-19

Defunct Corporations

 

Can serve trustee or any officer, director or other person having custody or control of its assets, or, if no such person can be found, then upon any agent upon whom process could have been served at the time of dissolution, if none can be found upon proper showing of diligence, a court order may be obtained authorizing service on the Secretary of State

Civil Proc. Before Trial, The Rutter Group §4:154

Suspended Corporations

 

Suspended corporations are served just like a corporation in good standing.

Civil Proc. Before Trial, The Rutter Group §4:160

Shareholders of Corporation

 

Note that if corporation has no assets the shareholders with more than 15% interest shall be jointly and severally liable for benefits paid by UEF.  Must then join (amend application) and serve these shareholders.

LC§3717

The Director of Industrial Relations may cause substantial shareholders and parent corporations to be joined as parties.

LC §3717.1 (can other parties join a substantial shareholder?)

“Substantial shareholders may be served as provided in this division for service on adverse parties, or if they cannot be found with reasonable diligence, by serving the corporation. The corporation, upon this service, shall notify the shareholder of the service, and mail the served document to him or her at the shareholder's last address known to the corporation.”

LC §3717.1

If the address of a substantial shareholder is known he or she can be served by mail.  If the address is not known the individual can be served by serving the corporation.

LC §3717.1

Business Entity Unknown

 

“A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

CCP §415.95(a)

“Service of a summons pursuant to this section is not valid for a corporation with a registered agent for service of process listed with the Secretary of State.”

CCP §415.95(b)

If the type of business entity in unknown then any person who is apparently in charge can be served.

 

Section (b) means that if the agent for service of process is known then the type of business entity is known and the section does not apply.  The business must be served in accordance with the procedures for serving that type of entity.  For example, for a corporation the named person to serve is the agent for service of process or one of the listed officers.

 

Limited Liability Company

 

Members of limited liability company (LLC) are liable to the same extent as shareholders in corporations.

McMullen v Ultracote 27 CWCR 142

Partnership

 

Can serve designated agent, general partner, and general manager to obtain jurisdiction over partnership.

CCP§416.40

If any of the above cannot be served after due diligence you can get an order from the board to serve any partner. After serving the partner mail copy to partnership’s last known address.

CCP416.40(c), Corp C§24007

Can also serve the secretary of state if after due diligence you cannot serve the agent for service of process or the agent has resigned.

CCP416.40(c), Corp C§24007

A judgment against a partnership is not a judgment against a partner as an individual. There must also be a judgment against the partner as an individual. Should name the partnership and each individual and should serve two sets of papers on a partner. One set for the partner individually and one set on behalf of the partnership.

Corp§16307(c)

Cannot execute against the assets of an individual partner until the assets of the partnership are exhausted.

Corp§16307(d)

If you don’t serve all the partners individually UEF may argue that you have precluded them from seeking the personal assets of any partner not individually served.

 

Service in Foreign Country

 

Can serve in foreign country by registered mail under Hague Convention.

Denlinger v ChinaDotCom Corporation 110 Cal. App.4th 1396

Can serve in Mexico by mail if the service complies with service by mail according to California law, i.e. first-class, postage prepaid, registered mail, return receipt requested.

In re Alyssa F. v Christina R. 112 Cal.App.4th 846

If employer is in a foreign county can serve by publication if address is unknown. If address is known must serve by Hague Service Convention.

Kott v. Superior Court of Los Angeles 45 Cal.App.4th 1126

Step 4. Complete Proof of Service

 

Proof of Service (POS)

 

Use Judicial Council form 982(a)(23). Fill out the form just like a summons and complaint was served except use the words Special Notice of Lawsuit and Application for Adjudication.

Civil Procedure Before Trial CEB §24.49

List all documents that were served.

 

Correct Name of Person or Entity Served.

 

Make sure proof of service lists the exact name of the person or entity served as shown on the Notice of Special Lawsuit and on the application as the employer.  Check the printouts of the research web sites. This is not the name of the person served.  It is the name of the defendant / employer.

 

If the name of the person served is different from the name on the application the proof of service can show the person served under a fictitious name. The application still needs to be amended to conform to correct name.  The process server should call this to the attention of the attorney who requested service.

 

The proof of service must show the true name and the fictitious name, e.g. William Smith sued as Doe 1, or William Smith sued as Smith Motors

 

Name of Person Documents Delivered To   

 

If the defendant employer is an individual and the SNOL is delivered to him or her then simply check the box.

 

If not delivered directly to the defendant the proof of service must recite or in other manner show the name of the person to whom a copy of the SNOL were delivered, and, if appropriate, his or her title or the capacity in which he or she is served.

CCP §417.10; Civil Procedure Before Trial CEB §24.49

The process server should always ask for the person’s name and his or her title or relationship to the defendant and if he or she is authorized to accept service.

 

If the person refuses to give his or her name then the process server must give a description of the person and recite facts to show the relationship of that person to the defendant.  There must be facts to connect the person to the defendant.

 

If the person states he or she has no relationship to the defendant and is not authorized to accept service, service cannot be affected and the process server should enquire further to locate the defendant.

 

Address   

 

This is the address where the documents are delivered.

 

Manner of Service

 

Make sure one of the boxes is checked.

 

If there is substituted service on a corporation make sure there is attached a proof of service by mail.  POS 3.b.

 

2) c. If the method is substituted service on an individual make sure there is attached a declaration stating acts relied on to establish reasonable diligence in first attempting personal service and there is attached a proof of service by mail.

 

2) e. The proof of service must have attached (stapled) a signed return receipt or other evidence of actual delivery to the person served.

 

“Notice to the Person Served” Declaration

 

The exact same information that was put on the front of the SNOL must be shown on the proof of service.

 

For an individual the box is check labeled “as an individual defendant”.  It is not necessary to put “as an individual” after the name of an individual in the caption.

 

Very seldom is the box checked for “as the person sued under the fictitious name of (specify):”  It is better practice to amend the application to the correct name of the person before effecting service rather than after service.

 

Compliance with the notice requirements is mandatory but substantial compliance is sufficient.

CCP §412.30; Tresway Aero, Inc. v. Superior Court 5 C3d 431

If during the service process it is learned that the correct name of the person is not shown on the application, the person can be served under the fictitious name shown on the application.  For example, correct name is “William Smyth” but the name on the application is “William Smith.”  Put the correct name in POS 2.a. and check the box for fictitious name and specify the fictitious name as “William Smith.”  The application should then be amended.

 

Person Serving

 

If a professional process server is used the proof of service must indicate the county of registration and registration number.

CCP §417.40

The service is not invalid even if the professional process server failed register.

CCP §413.40

Defects in the proof of service can be corrected. If the proof of service has been filed, file an “Amended Proof of Service.”

Herbert Holtzman, individually and as sole shareholder of American Oak Products, Inc. v. WCAB 66 CCC 1372; Willen v. Boggs 21 CA3d 520

Declaration Checked

 

Always make sure this is checked

 

Date and Signature

 

Always make sure this is filled in.

 

Step 5.  File SNOL and Proof of Service with the WCAB

 

Return of the proof of service means to file the SNOL along with the proof of service with the board. Serve all parties on the service list.

CCP §417.30(a)

The original of the SNOL is filed with the board.  (Just like the original of the summons is filed with the superior court.)

 

In a civil action the summons and complaint must be served within 3 years of filing (case is dismissed) and must be returned within 60 days of service. “Returned” means POS is filed with court. But this does not apply to a workers’ compensation case.

CCP§583.210, 583.250; Smith v. WCAB 66 CCC 1575

All civil courts are now on a “fast track” that requires service and return of service within 60 days from filing of the summons.  This, also, does not apply in a workers’ compensation case. But don’t forget this does apply to a summons and complaint in superior court.

 

 


NOTICE TO COMMERCIAL MAIL RECEIVING AGENCY (CMRA)

 

Subsection (d) of California Business and Professions Code Section 17538.5 reads as follows:

 

"Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, along with a USPS Form 1583, which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving service customers, and for two years after termination of any mail receiving service customer agreement. Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer's mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing.


If the CMRA owner or operator has complied with the foregoing requirements and provides to any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing, the CMRA owner or operator shall have no further liability in connection with acting as agent for service of process for its mail receiving service customer.


SERVICE OF PROCESS TABLE

Service of Special Notice of Lawsuit

Type of Service

 

 

 

 

 

Persons authorized to accept service of process

Personal Delivery

415.10

Out of state mailing

415.40

Notice and acknowledgment of receipt

415.30

Publication after due diligence

415.50

Business: Leave with person apparently in charge of office and mailing first class postage prepaid to person to be served.

415.20(a)

Individual: Leave in presence of competent member of household or apparently in charge of office and mailing after reasonable diligence.

415.20(b)

Individual, sole proprietorship or partner as an individual 416.90

     Individual

     Person authorized to accept

          service1

Yes

Yes

Yes but it’s seldom done

Yes

NA

Yes

Corporation 416.10(a)

     Agent for service of process

Corporation 416.10(b)

     President or other head

     Vice president

     Secretary or Assist. Secretary

     Treasurer or Assist treasurer

     General manager

     Person authorized to receive service of process2

     Secretary of State after obtaining a court order

Yes

Yes

Yes

No

Yes

(Reasonable diligence not required)

NA

Partnership 416.40(a)

     Agent for service of process

     General partner

     General manager

Yes

Yes

Yes

Yes

Yes

(Reasonable diligence not required)

NA

 

Notes:   1. “Send everything to my attorney” is authorizing attorney to accept.

            2. If a person other than the one to serve signs the return receipt, Applicant has burden to show person signing receipt was authorized.

            3. Caption should state whether a California Corporation or a Partnership or an individual