What should I do if I cannot locate the defendant to serve small claim papers?

If you are filing a small claim case in California small claims court, one important step is to serve court papers to the defendant. This means officially notifying the person or business you are suing about the case and the date they need to appear in court. However, this can become challenging if you are unable to find the defendant. This article will let you know, what to do if you cannot locate the person or business to serve small claim court papers.

Why serving small claim court papers is important?

Serving small claim court papers is a critical part of any small claims case. Before the court can proceed, it needs proof that the defendant has been notified of the small claim lawsuit. This ensures they have a fair chance to respond and defend themselves in small claim court. If you do not serve the small claim court papers correctly, it can cause delays, and the court might even dismiss your case. In the state of California, you are not allowed to serve the papers yourself. A neutral third party, like a professional process server, the sheriff’s office, or an adult not involved in the case, must serve the papers. But a question still arises, what if you cannot find the defendant to serve the small claim court papers?

What steps to take If you cannot find the defendant?

If you are unable to locate the defendant in California, there are several steps you can take to move your case forward.

Step 1:

Double-check the defendant’s last known address

The first thing to do is check the defendant’s last known address. Look through any past communications, contracts, or documents that might contain their home or business address. If the defendant is a business, you can search for their registered business address or the address of the person responsible for receiving legal papers on behalf of the business (called an "agent for service of process").

Step 2:

Use alternative contact methods

If you have any other ways to contact the defendant, such as a phone number, email address, or social media profile, try reaching out. Politely explain that you need to serve them court papers. While this is not a formal way to serve papers, it may help you find out where they are so that you can proceed with official service through a proper channel.

Step 3:

Hire a process server or private investigator

If the defendant has moved or is avoiding being served with court papers, you can hire a process server or private investigator. These professionals specialize in locating people and have access to tools and databases that can help track down hard-to-find individuals. While hiring a professional comes with a cost, it may be the most effective way to locate someone who is deliberately avoiding service.

Step 4:

Request “Substituted Service” or “Service by Publication”

If you have tried multiple ways to serve the defendant with small claim court papers but still cannot find them, you can ask the court for permission to serve the papers in an alternative way. Two common options are:

Substituted Service: This method allows you to leave the small claim papers with someone else at the defendant’s home or business. This could be a family member, co-worker, or roommate. You will also need to mail a copy of the papers to the defendant. However, this method requires court approval.

Service by Publication: If substituted service is not possible, you can request service by publication. This involves publishing a notice about your small claim lawsuit in a local newspaper where the defendant was last known to live or work. You will need to ask the court for permission to use this method by filing a form called a Request to Serve by Publication.

How to get court’s approval for service by publication?

In order to get the court’s approval for service by publication, you must prove that you made a strong effort to locate the defendant but could not find them. You will need to show evidence of your attempts to serve the papers. This could include proof that you visited the defendant’s last known address, contacted people who might know their whereabouts, or tried other ways to reach them. Once the court agrees to service by publication, you must choose a local newspaper where the notice will be published. The notice typically needs to run for 4-5 weeks. After this period, the court will consider the defendant to have been properly notified, even if they did not see the newspaper notice.

Keep the Court informed about the service attempts

It is very important to keep the court updated on your efforts to serve the defendant with small claim papers. If the court date arrives and you still have not located the defendant, you must provide proof of all your attempts to serve them. The judge will want to see that you made a serious effort to notify the defendant. If you succeed in serving the defendant through an alternative method like substituted service or service by publication, your case will continue as planned. However, if the defendant still does not show up in court, the judge might decide in your favor and issue what is called a default judgment. This means you win the case because the defendant did not show up to defend themselves.

Conclusion

There are several options available for you to avail if you cannot locate the defendant to serve papers, whether you choose to hire a process server, ask the court for substituted service, or request service by publication, you have ways to move your case forward. Each option ensures that you are doing everything possible to notify the defendant and proceed with your small claims case. Keep a record of every attempt you make to serve the defendant. With patience and the right approach, you can still successfully pursue your case even if the defendant is difficult to find. By following the steps outlined above, you will be on the right track to ensure your case progresses in small claims court, even if the defendant is hard to find.