Generally

California statutory law provides that in certain cases, when a party cannot be located, alternative service of process may be completed via publication of a summons. Specifically, "the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court." (Cal. Code of Civ. Pro. §413.30.)

“A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that …: [¶] (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.” (Code Civ. Proc. § 415.50(a)(1).)

“Constitutional due process requirements are satisfied where the form of service provided and employed is reasonably calculated to give a litigant actual notice of the proceedings and an opportunity to be heard.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213).)

Court's Finding

• The declaration for publication of summons must be executed by a person who is a competent witness to the proof of facts required by section 415.50, subdivision (a).
• The Court must determine that "reasonable diligence was utilized to locate putative parties." (See, e.g., Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.)
• The court may not require the summoning party to conduct a search of public databases if access to residential addresses is "prohibited by law or by published policy of the agency providing the database, including, but not limited to, voter registration rolls and records of the Department of Motor Vehicles." (CA CCP § 415.10(e).)

Publication Requirements (California Code of Civil Procedure §415.50)

The court may authorize summons served by publication if:

1. Upon affidavit the court determines that the party to the action "cannot with reasonable diligence be served in another manner specified in";
2. And that either:
• A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action; or
• The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.

Conditions of an Order for Publication

Code of Civil Procedure § 872.320 sets forth three conditions to which an order is subject: posting 10 days after the order, recording a notice of pendency of action, and details of the publication.

Code of Civil Procedure § 415.50(b) provides:

"The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. … The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period."

Subsequent Identification of Party's Address.

If the address of the party to be served is ascertained before the publication time has expired, a copy of the summons, the complaint, and the order for publication must be immediately mailed to the party to be served. (California CCP §415.50(b).)

Period of Publication.

The Period of Publication begins on the day the Summons is published, and ends 28 days later (including the publication date). Unless the Court in its discretion extends the publication period, notice must be published either:

• Once a week for four successive weeks; or
• Four times in a newspaper regularly published at least once a week, with at least five days between each publication (not counting the dates of publication).

(CCP §§ 415.10 - 415.95 ("Manner of Service of Summons").)

Reasonable Diligence Requirement

The first requirement for an order permitting service by publication is a showing that the party cannot be served with reasonable diligence by another method of service. Service by publication is to be “utilized only as a last resort.” (Watts v. Crawford (1995) 10 Cal.4th 743, 749 fn. 5.) Service by mail must be attempted prior to filing an application for order for publication. (Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746.) “‘… The term “reasonable diligence” … denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. A number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, … and by investigation of appropriate city and telephone directories, [voter registries, and assessor’s office property indices situated near the defendant’s last known location], generally are sufficient. These are the likely sources of information, and consequently must be searched before resorting to service by publication.’ [Citations.] ‘Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice.’” (Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5 (internal citations omitted).) “It is well established that the affidavit submitted under section 415.50 must establish reasonable diligence by ‘probative facts’ based on personal knowledge.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42.)

Void Judgment Due to Lack of Reasonable Service

Under Code of Civil Procedure section 473(d), “[t]he court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” When service of the Summons and Complaint is by publication, the judgment may be deemed facially invalid if the affidavit in support of service by publication failed to show reasonable diligence: An order for publication of summons, based solely upon a finding that the defendant ‘cannot after due diligence be found within this state,’ is void when the affidavit which constituted the evidence in support of that finding does not contain any evidence tending to prove any diligent effort to find the defendant.

Cause of Action Requirement

The second requirement for an order permitting service by publication is that a “cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.” (Code Civ. Proc., § 415.50, subd. (a)(1).)

Declarations

All statutory requirements must be contained in declaration(s) submitted by those with personal knowledge of the facts, meaning that while the reasonable diligence requirement may be shown by counsel, the other jurisdictional requirements are established by the moving party itself (and is often outlined in a separate declaration). (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2018), ¶ 4.263, p. 4-46.) These showings are jurisdictional prerequisites to the issuance of an order for publication. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42, fn. 9.) The moving party’s attorney can execute the declaration about the requirements outlined in section 450.50, subdivision (a)(1) or (2) only if he or she has the requisite personal knowledge of the facts in support. (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 626 (verification by plaintiff’s counsel on information and belief not sufficient as a sworn statement of facts for publication of summons).)

Compliance

• "Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction." (Maria Angela Rivas V. Encarnacion Valdez Et Al., 16Cecg01311 (4/4/2017).)
• "[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444).) "Therefore, the entry of default will be stricken." (Id.)
• "Actual notice of the pendency of the lawsuit is irrelevant unless legally effectual service is made. The means by which service of process can be made upon an individual residing in California are prescribed by the Code of Civil Procedure…[including] publication service [under] Code Civ. Proc., §415.50." (Christman Kelley & Clarke Pc V. Paul Herbert Feller, 16Cv01365 (12/5/2016).)
• "'Service' by e-mail, Facebook, LinkedIn, and overnight mail (without notice and acknowledgment of receipt, pursuant to Section 415.30), do not qualify as legal service of process, would not be legally sufficient to avoid an attempt to quash such service, and would not be legally sufficient to support entry of a default." (Id.)

International Service

International service of process must comport with the Hague Convention regarding service on an individual in a foreign country, or a proper basis for why the Hague Convention did not apply. (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 (Schlunk ); Code Civ. Proc. § 413.10(c); Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 794, 69 Cal.Rptr.2d 457; Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1133, 53 Cal.Rptr.2d 215 (Hague Convention "preempts inconsistent methods of service prescribed by state law in all cases to which it applies").)

Court Forms

• Application Form For Order For Publication or Posting
• Declaration (of individuals involved in the search to find a named party)
• Attachment To Judicial Council Form (Affidavits and Evidence of unsuccessful search for the party's address)