Category: motion to quash service

A recent blog post by Robert J. Nahoum, entitled What is a Traverse Hearing in a Debt Collection Case? he describes what happens during a traverse hearing under New York law. California refers to this analogous procedure as a motion to quash service.

What is also interesting is a summary of what records NY process servers must keep to record their attempts and services, and how onerous it is now to be a process server there.  A NYC process server must maintain the following, including, I am told, a GPS capture of the attempts and services for 7 years in sequential electronic format, which is subject to audit:

(a) the title of the action or a reasonable abbreviation thereof;

(b) the name of the person served, if known;

(c) the date and approximate time service was effected;

(d) the address where service was effected;

(e) the nature of the papers served;

(f) the court in which the action has been commenced;

(g) the index number of the action, if known;

(h) if service is effectuated [by posting], a description of the color of the door to which the summons is affixed;

(i) the process serving agency from whom the process served was received, if any;

(j) type of service effected whether personal, substituted or conspicuous;

(k) if service is effected [personally or by delivery to another,] a description, including, but not limited to sex, color of skin, hair color, approximate age, height and weight and other identifying features;

(l) if service is effected [by posting and mailing], the record shall also include the dates, addresses and time of attempted service pursuant to subdivision one, two or three of such section;

(m) if the process server files an affidavit of service with the court, his record shall include the date of such filing.”

If a traverse hearing is initiated, the plaintiff carries the burden of proof that the service was effected properly.

Several years ago California added Evidence Code sec. 647 which gave a proof of service signed by a registered process server rebuttable presumption status, shifting the burden of proving evidence of the service away from the plaintiff, requiring the defendant to show that they were not properly served.

The court of appeal reaffirmed the validity of that presumption in Palm Properties Investments, LLC v. Yadegar, 194 Cal.App.4th 1419 (2011). [Summary of decision]