Substitute service of process at private post office box is permissible

Law Reporter, May 2002

Substitute service of process at private post office box is permissible.

Ellard v. Conway, 114 Cal. Rptr. 2d 399 (Ct. App. 2001).

A California appellate court held that substitute service of a summons and complaint at a private post office box is permissible under the state code.

Here, the Ellards sued the Conways for fraud arising out of a property dispute. The process server discovered defendants had moved and left a private post office box as a forwarding address. Accordingly, the process server left a copy of the summons and complaint with the Postal Annex manager and mailed a copy to the same address. Plaintiffs' counsel also mailed a copy to that address. One of the defendants later denied receiving a copy of the summons and complaint. However, according to plaintiffs' counsel, that defendant said he had received a copy and wanted to discuss the case.

Plaintiffs obtained a default judgment when defendants failed to file an answer. Defendants moved to vacate the judgment, claiming that (1) they were not properly served, and (2) they had no actual notice of the lawsuit. The trial court denied the motion.

Affirming, the appellate court noted that plaintiffs met the relevant requirements for proper substitute service under Cal. Code Civ. P. section 415.20(b). Rejecting defendants' argument that plaintiffs had not been reasonably diligent in attempting personal service, the court found that plaintiffs were not obligated to exhaust all means of obtaining a current address and that contacting the U.S. Postal Service was sufficient.

Further, the court rejected defendants' argument that section 415.20 does not authorize substitute service on a private or commercial post office box. The court pointed to the unequivocal language of the statute, which provides that "service at a person's usual mailing address other than a U.S. Postal Service post office box is effective." Therefore, substitute service at private or commercial post office box, as here, is authorized. Defendants notified the U.S. Postal Service that the post office box they leased was their forwarding address, making it their "usual mailing address." In response to defendants' argument that the Postal Annex manager was not "apparently in charge" of their post office box, as required by the statute, the court noted that the manager knew defendants and had a duty to deliver mail to them as lessees of the post office box. Such circumstances made it more likely than not that she would deliver the summons and complaint, the court reasoned.

The court concluded that the trial court could reasonably have found that defendants had actual and timely notice, based on (1) defendant's calls to plaintiffs' counsel, (2) a document faxed by defendant to plaintiffs' counsel referencing the case number, and (3) defendants' offer to settle the case. In addition, the court said, defendants had actual notice two weeks before an answer was due.

Accordingly, the trial court's denial of defendants' motion was proper.

Plaintiffs' Counsel

Stanley R Jones, Irvine, Cal.