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What if the “Service of Process” Rules Were Not Followed?

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In California, the person who starts a lawsuit in small claims court (called "the plaintiff") has to have a copy of his or her Plaintiff’s Claim (Form SC-100) delivered to you, the defendant, in person, by certified mail, or by substituted service. The Plaintiff’s Claim will have the date, time and place of the court hearing.

There are specific rules about how and when the defendant is to be given a copy of the court papers. These are called the rules of “service of process” Opens new window and include: 

  • The defendant is entitled to receive at least 15 days’ advance notice of the court hearing (or 20 days’ advance notice if the defendant lives outside the county where the plaintiff filed the claim.) 
  • Each defendant is entitled to receive his or her own copy of the Plaintiff’s Claim, even if other people named as defendants received a copy and could tell the others about it. Each defendant has to be served with a copy of the Claim separately.

 

If you are the defendant and you were not served on time

You may write a courteous letter to the court informing it that you are not “waiving” (excusing) service, and that you are not going to attend the hearing.

Include in your letter the fact that you mailed a copy of the letter to the Plaintiff.

  • You must mail a copy of your letter to the Plaintiff. 
  • Keep a copy of your letter in your own file.

If it is less than 5 days before the hearing, deliver the letter to the court filing window and ask that the letter be brought to the attention of the court.

If the judge agrees with you, he or she will probably postpone the hearing for at least 15 days to give you the opportunity to prepare your case. The court will mail its decision to you.
 


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