CCP415.20ProposedLegislation
Proposal 1
CCP 415.20(b)
If a copy of the summons and 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 complaint at the 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 complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Proposed CCP 415.20(c)
If a summons and complaint is served on a defendant at a mailing address other than a United States Postal Service post office box, or at a business address with a non-service policy, or any other address in which a server is unable or restricted from establishing personal contact with the defendant, a summons may be served by leaving a copy of the summons and complaint 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, 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 complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Proposal 2
415.20 (b) If a copy of the summons and 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:
(1) leaving a copy of the summons and complaint 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 at the 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. If the defendant’s mailing address is a Commercial Mail receiving Agency, service may be made on the person there in charge on the first attempt, and;
(2) by 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 complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
Proposal
I was also floating the idea of somehow memorializing the ability to physically sub serving on the first attempt, and continuing to establish due diligence for personal service, then failing that, mailing a copy to the defendant. The triggering date for when service is deemed effected is the date of the mailing, not the physical delivery. The statute says nothing about the attempts having to be made BEFORE delivery – only that due diligence is exercised before resorting to substituted service.
Furthermore, the wording on the proof of service (POS-010) may be mis-stating the law when it says in item 5(b)(5):
I attach a declaration of diligence stating actions taken first to attempt personal service. (emphasis added.)
Certainly, the statement reflects a common belief and practice that service was FIRST ATTEMPTED before substituted service was made, but the statute does not say that.
Anyway, below is the statute in question. The “If” in the sentence references when reasonable diligence cannot result in personal service, then it “may be served” on another enumerated person, then mailed. Nothing references “when” – before or after delivery – only that the mailing must occur after. It only says that you must.
One drawback is that if this amendment were successful, it could encourage servers to fake attempts ,especially after the physical service occurs. Of course, it happens now, but would it increase?
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CCP 415.20 (b) If a copy of the summons and 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 complaint at the 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 complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.