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California: Service of Summons by Publication

A very common question I encounter is some variant of ‘How do I file a lawsuit against a person if I don’t know where they are?’

I often see this from people who want to file for divorce (in California, divorces must be done in court so a lawsuit must be filed) because they want to get married again and don’t want to commit bigamy. This concern exists these people never got a divorce to end their prior marriage. They simply moved out (or their spouse moved out) and each went on with their lives. Sometimes a year or two passes before the idea of wanting to get married to someone else pops up, but sometimes 10 or more years might have passed and, for instance, people move far away or pass away.

In such a situation then, how can this person file a divorce case against their spouse if they haven’t seen their spouse for years? Once filed, the divorce papers have to be served on the spouse and that involves finding the spouse. Somehow.

The answer to that question is to do Service by Publication. You might have more commonly heard this described as ‘taking out a newspaper ad’. Most newspapers will have a section where legal notices are posted although it is debatable who or how many people actually look at those ads. I’ve used a divorce scenario to illustrate a situation where service may need to be done via a newspaper ad, but the idea of doing Service by Publication is applicable in California, at least, to a variety of civil lawsuits where serving the lawsuit on the defendant is going to be difficult or impossible. Sometimes this is because the defendant genuinely can’t be found (e.g. Plaintiff genuinely has limited means to find them) or because the defendant doesn’t want to be found. In my experience — and I fully admit this may not be representative — defendants who purposely don’t want to be found generally does so because they know they are guilty of what the Plaintiff has alleged.

The governing law in California for Service by Publication is going to be section 415.50(a) of the California Code of Civil Procedure. If you’re contemplating using Service by Publication in your California civil case, here are some things you need to remember.

  • When we talk about “Service by Publication”, what is being served is going to be the Summons. A lawsuit Summons in California is generally going to be a Judicial Council Form. For divorce cases, it’s the Judicial Council Form FL-110. For civil cases, it will be the SUM-100 form.
  • The newspaper ads I’ve had run before generally contain only the Summons. The complaint is not included in the ads I’ve seen and run because complaints can be short, but are often very long (20 or more pages). The cost of publishing all of that complaint would be enormous.
  • In California, you have to get permission from the judge before you can do Service by Publication. The precise term of what you file varies by county, judge, local custom, etc, but one common name I have seen is an “Application to Serve Summons and Complaint by Publication.” In other words, you can’t just decide to do it on your own. As you can probably guess, if the judge’s approval wasn’t required, a lot of plaintiffs would lie and say that they can’t find the defendant.
  • In California, the standard the judge will use to evaluate your Application to Publish is whether the defendant cannot be served with reasonable diligence via any other means. In other words, Service by Publication is to be used only as a last resort. The Application to Publish will have to persuade the judge that you have tried every other method to find and serve this particular defendant and you’ve still failed.
  • What counts as sufficient effort or reasonable diligence will vary from situation to situation. If you’re the Plaintiff and the Defendant is someone you don’t know (e.g. defendant was just another motorist, hit you with their car and you’re suing for injuries), then you’re going to have limited means to find and serve them, especially if they want to not be found. On the other hand, if yours is a divorce situation and you were married to your spouse for 15 years and you last saw them 6 months ago, you’re going to have more means to find your spouse (e.g. through friends, relatives, etc) so reasonable diligence will be different.

Assuming you get the judge’s permission to do Service by Publication, the next step is to actually run the newspaper ad. In my experience in California, each county’s Superior Court will have an established list of permissible newspapers. I’ve always used newspapers from that list because they run these ads all the time, know how to do it, etc. The ad is usually run a few days a week for 4 consecutive weeks and the defendant is then considered served just as if they had been handed the Summons and Complaint in person.

On that note, a word to potential defendants: You can’t prevent or obstruct a lawsuit by refusing to be served or otherwise making yourself difficult to find. If you make service of the summons and complaint difficult, any competent Plaintiff’s attorney will just get a judge to allow for Service by Publication. The case against you will still proceed except the judge will only get to hear Plaintiff’s evidence against you. You won’t be able to defend yourself so even if Plaintiff’s evidence is wrong, the judge will still believe it. Defendants still try to make service difficult, though.

Lastly, I haven’t checked, but I would be extremely surprised if Service by Publication was a California-specific thing. As always, of course, you should look up the laws and procedure for your own state and or county because even in California, there is variation on how precisely to get Service by Publication accomplished. What else? Oh, right, this post is not meant to be an exhaustive description of the topic, but rather just a general overview. If you were wondering about how to sue someone you can’t find, hopefully this post and the resources linked in were helpful.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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