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Have you ever filed a small claims action in California? I’ve done one a long time ago and one just recently. In between, I filed a lot of cases in bankruptcy court (I’m a bankruptcy lawyer by training and practice). My recollection of my first small claims case is that it wasn’t hard to do. The more recent case was made much harder by changes in the procedure.

If you go to the official California court website, it says that you can serve the defendant by certified mail:

Service by Certified Mail by the Court Clerk

You can pay the court clerk to mail your claim to the person you are suing by certified mail. This can be very convenient and the fee is low.

But this type of service can also be very unreliable. The court will probably not accept it and will make you serve again (with personal or substituted service) if:

  • The person you are suing or the person's agent for service does not sign the certified mail receipt with his or her complete name;
  • The judge cannot read the signature on the certified mail receipt and cannot tell who signed it; or
  • Someone else signs the receipt.
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This seemed to be relatively simple and matched the way I had previously done it. But when I went to the clerk’s office at small claims, I was told that this was no longer permitted. The court had stopped allowing service by certified mail because too many defendants refused to sign the certificate, or the wrong person signed it. So I was told that I had to use personal service through the sheriff’s department, a private process server, or a friend.

The court had stopped allowing service by certified mail because too many defendants refused to sign the certificate, or the wrong person signed it.

It is very difficult to get the sheriff’s department to serve papers. While it is possible to hire a process server, it is very difficult to figure out which of the many potential servers are reliable or even real. Finally, a friend might work, except you as the plaintiff might be reluctant to get a friend enmeshed in the lawsuit.

The real question is why the State of California insists on imposing complications and costs on plaintiffs in cases the are supposed to be small. Under bankruptcy law, any litigation can be commenced with service of process by first-class mail. The bankruptcy courts do not appear to worry about whether the defendant actually receives the summons, As long as a non-party sends out the summons by mail, that is sufficient.

The State of California doesn’t need to rely on first-class mail alone. Why not have the plaintiff bring stamped addressed envelopes to the Clerk’s office? When the complaint is filed, the plaintiff puts a copy into a stamped addressed envelope and then hands it to the Clerk, along with the defendant’s email. The Clerk then sends out the envelope and also sends out a copy by email. Of course, it is up to the plaintiff to prove to the court that the mail and email addresses are accurate, but having the clerk send out the complaints is a trustworthy method of dispatching them.

In our modern age, there’s really no need for the expense and bother of personal service or of certified mail service. And, by the way, why does the official court website still say that you can use certified mail when the court won’t let you?

michael hertz

Michael Hertz