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serving a Claim

This section has information for you, the plaintiff, about:

  1. How to serve your claim
  2. Who should be served with the Plaintiff’s Claim
  3. What if the claim isn’t served on time?
  4. What if you can’t serve the claim on the defendant
  5. How do you tell the Clerk’s office the claim has been served
  6. More help for before, during and after the hearing...

  1. How to serve your claim

    When you fill out the Plaintiff's Claim and Order to Defendant form (SC - 100) , it tells the defendant what the claim is about and the date, time, and place of the hearing.

    After you file your claim and get a hearing date, you have to get someone to give every defendant a copy of the Plaintiff's Claim and Order to Defendant. You have to do this before you can have a hearing for your case.

    Giving these papers to the defendant is called service of process. You have to make sure that every defendant gets the proper notice about the case. Try to give the defendant more notice than what the law says you have to.

    You have to serve the defendant inside the state of California. But, there are two exceptions:

    • A defendant who doesn’t live in California who owns real property in California. If the claim is about the property and they don’t have an “agent for service”. The defendant can send someone to represent them or file an affidavit to defend the claim.
    • A defendant who doesn’t live in California who owned or drove a car that was in an accident on a California highway or road. You have to serve the defendant and the Department of Motor Vehicles.

    Most out-of-state corporations or partnerships that do business in California usually have a California “agent for service of process”. You might be able to serve their agent. To get that information, call the Secretary of State in Sacramento: (916) 653-7315  (recording) or visit their website: www.ss.ca.gov .

    If a corporation is  doing business in California but hasn't registered with the Secretary of State, go to www.ss.ca.gov  for more information.

    If a corporation is doing business in California but hasn't registered with the secretary of state, go to the Secretary of State website  for more information.

    There are three ways to serve the defendant with the Plaintiff's Claim and Order to Defendant:

    If you need to serve papers to someone in custody, read this flyer: Do you want to serve someone who is in jail or prison in California.

    Certified mail by court clerk:

    The clerk can serve the Plaintiff's Claim and Order to Defendant by sending it certified mail and restricted delivery. You have to pay a fee for every defendant. To learn more about fees, see the Local Court Fees page.

    You can’t mail it yourself. The court clerk gets a return receipt that says that the defendant signed for the certified mail. Call the court 10-15 days after the clerk mails the Plaintiff's Claim, to find out if it has been served. Give the clerk the case number and hearing date when you ask for this information.

    Warning: This type of service doesn’t usually work. In some courts, it only works about 1/2 of the time. The defendant can refuse to take the letter or sign a receipt. And if the defendant doesn't go to the hearing, the judge can refuse to hear the case unless he/she decides the defendant actually signed the receipt. A lot of times you can’t read the signature on the receipt, or someone else signed for it. If there is no proof that the defendant signed the receipt, you may have to serve them again.

    Personal service:

    Someone, not you, who is over 18 years old and not part of the lawsuit, can personally give the defendant a copy of the Plaintiff's Claim and Order to Defendant.

    Process servers:

    Most people use a professional process server or the sheriff to serve their papers. If you win the case, you can get the defendant to pay you back for the cost of service.

    Note: You can find professional Process Servers in the yellow pages. The clerk’s office CAN’T recommend a server. The process server should bring the original proof of service to the Clerk’s office 24 hours after service, and tell you that they served the defendant.

    Also, the Sheriff’s Department of Santa Clara County doesn’t serve Small Claims papers anymore. If the person you are suing lives in another county, get in touch with the sheriff’s Civil Division in that county to find out if they still serve small claims papers.

  2. Who should be served with the plaintiff’s claim?

    If you decide to have a friend serve the papers instead of using a professional process server, make sure the papers get served properly.

    You can’t just drop the papers on their doorstep or give them to someone in their family. Usually, a copy of the Plaintiff's Claim and Order to Defendant must be delivered to these people:

    For one defendant:

    Serve the defendant in person.

    For a partnership:

    Serve:

    • A general partner,
    • he general manager of the partnership, or
    • A person or agency that the partnership has named as its “agent for service of process”.
    For a corporation:

    Serve:

    • The president or other head of the corporation,
    • A vice president,
    • A secretary or assistant secretary,
    • A treasurer or assistant treasurer,
    • A general manager,
    • A person or agency that the corporation named as an “agent for service of process”, or
    • Any other person with permission to get service of process.

    For a minor:

    In general, if a defendant is under 18, serve their parent or guardian. If you search but can’t find one, serve:

    • Anyone who’s in charge of the care or control of the child, or
    • The person the child lives with, or
    • The person who employs the child.

    If the minor is over 12 years old, you also have to give a copy of the claim to the minor.

    Substitute service:

    A process server can leave a copy of the Plaintiff's Claim at the defendant's house or where they usually work. It has to be left with a competent person in the house who is over 18. Or, with a person who is in charge where the person works during normal office hours. The process server has to tell the person served what the papers are for.

    The process server also has to mail a copy of the papers to the defendant. They must use 1st class mail and send it to the place where they left the papers. Substitute service is not complete until 10 days after the papers are mailed. The process server has to write the name of the defendant and the name of the person that they left the papers with on the Proof of Service form. They must give this form to the clerk before the court date.

    For a driver who lives out of state:

    A process server can serve a person who lives out of state but was in an accident in California by:

    • First serving the California DMV, and
    • Then serving the defendant. You can use any of the methods above or serve by registered mail.

    This can be complicated. Talk to the clerk or contact the Small Claims Advisor before you serve a driver who doesn’t live in California.

    No matter what type of service you use, you have to serve the defendant a certain number of days before the hearing.

    For personal service, you have to serve the defendant at least 15 days before the hearing if the defendant lives or works mainly in the same county as the court. You have to serve the defendant 20days before the hearing if the defendant lives or works mainly outside the county.

    If you used substitute service after serving the household or workplace, you have to have the Plaintiff's Claim and Order to Defendant form mailed at least 25 days before the hearing if the defendant lives or works in the county. The Claim has to be sent 30 days before the hearing if the defendant lives or works outside the county.

  3. What if the claim isn't served in time?

    If you don't serve the defendant in time, the defendant can ask to postpone the hearing.

    In most cases, the court will agree. When you count the days, don't count the day the defendant was served, but do count the date of the hearing.

  4. What if you can't serve the claim on the defendant?

    You can take the service copy of your claim back to the clerk’s office and have ask for a new hearing date to give you more time to find and serve the defendant.

    If you try service by certified mail and it doesn’t work, you can’t get a new hearing date until the service copy of the claim is returned to the court by the post office.

  5. How to tell the Clerk’s Office the claim has been served

    File the proof of service form with the clerk’s office within 24 hours after service. Professional process servers usually have their own proof of service forms.

  6. More help for before, during and after the hearing...

    Read these pages for the plaintiff:

    You should also read the pages for both the defendant and plaintiff: About Small Claims Court, Alternatives to Lawsuits, Prepare for Your Day in Court, Judgment - Judicial Decision, and Property/Money Collection.

    You may also find helpful information on these Small Claims pages: the Small Claims Advisor and Small Claims FAQs.

© 2014 Superior Court of California, County of Santa Clara