What Can a Process Server Do and What Can’t They Do?

Hossein Berenji, May 29, 2020

When you file for divorce, your spouse has to be served with the divorce papers. In many cases, a process server is used to serve divorce complaints and other divorce pleadings. However, a process server must follow the law for serving legal documents in California.

A process server cannot break the law when trying to serve papers, such as trespassing or breaking and entering. Therefore, a process server needs to understand how to become creative at times without crossing the line and doing something they are not supposed to do.

What is a Process Server?

Service of process may be made by someone who is over 18 years of age and not a party to the lawsuit. That person could be a professional process server, a county sheriff’s officer, or even a friend.

A process server in California that serves more than ten legal documents a year must be registered. They register with the clerk of court in the county in which they live, or they have their principal place of business. Businesses that intend to offer process services must also maintain a certificate of registration.

Some individuals are exempt from registering as a process server. Law enforcement officers are not required to register. Attorneys and their employees and anyone who is appointed by the court to serve its process is not required to register.

Licensed private investigators nor the investigators’ employees need to register. Professional photocopiers who respond to records production requests and subpoenas are also not required to file a registration.

Process servers are not required to complete a course or have a specific education to serve legal documents. The process server is responsible for knowing and understanding the laws related to serving legal documents in the state. Process servers are also required to post a $2,000 bond or cash deposit.

What Can a Process Server Do or Not Do?

A process server’s main job is to deliver legal documents to an individual or party named in the action. The purpose of process service is to place the party on notice that an action has begun or that a relevant document has been filed in the case.

Some documents in a legal action must be served in a specific manner. For example, a document may require that the process server personally serves the individual. Personal service is generally accomplished by identifying the person and handing the person the document.

Breaking and Entering is Illegal

Most process servers begin personal service by attempting to serve the person at their home. In most cases, the process server is not trespassing unless the process server unlocks a locked gate or enters a locked building without permission.

If the process server cannot legally enter the property or the building, the process server must come back or wait for the person to leave. When a person is avoiding service at his home or office, the server may wait until the person leaves to serve the papers on the person in a public place.

Cannot Use Threats or Harassment to Serve Papers

A process server cannot force someone to open a door. The server cannot threaten or coerce the person to force the person to allow entry or accept the document.

Cannot Pretend To Be a Law Enforcement Officer

A process server cannot pretend to be a police officer or other court official to force the person to open a door or accept a document. If a person refuses to open a door, it is illegal for the process server to claim to be a law enforcement officer to compel the person to open the door.

A Process Server Can Stakeout a Person

While a process server cannot harass or stalk a person that he or she is serving with legal documents, the law does not prevent a process server from waiting outside of a home or business for the person to exit. The process server may also wait in front of a known friend or family member’s home if the server thinks the person will visit there.

Cannot Leave Papers with a Minor

It may be tempting for a process server to leave the papers with anyone who might answer the door, especially in cases in which a party is avoiding service. The process server cannot leave the papers with anyone who is under the age of 18 years. If the person is evasive, the server may leave the papers with an adult household member.

What Happens if the Documents Cannot Be Served?

If a process server is unsuccessful in serving the person, the attorney may file a motion with the court asking to serve the person in another manner. The court may grant a motion to serve by public notice. An experienced family law attorney understands how to proceed if a spouse or other party refuses service of family law documents.