An amendment to California Code of Civil Procedure [CCP] § 415.20, (effective 1/1/18) has been added allowing substituted service of a lawsuit of an individual defendant on the first and only attempt at a commercial mail receiving agency [CMRA] (e.g., The UPS Store, Postal Annex, etc.). The amendment authorizes service “in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code [B&P Code].”
Existing law allows for substituted service of a summons on a) business, and b) an individual. Substituted service on a business may be served on the first attempt by leaving a copy with anyone apparently in charge of the business or at a mailing address. Service on an individual defendant generally requires multiple attempts – due diligence – before substituted service may be made at a home, business, or mailing address. Although due diligence is not defined by statute or case law – only what it isn’t – each venue in California defines it locally. Generally, 3 to 4 attempts would suffice, provided the time of the attempts and days are varied. Substituted service requires a follow-up First Class mailing to the address where the service was made whereupon service is deemed complete 10 days after the date of mailing.
The new amendment adds a new manner of service, subsection CCP § 415.20(c) when serving an individual at a CMRA. The amendment only applies to mailing addresses at a CMRA. It does not apply to any other mailing address, such as the former co-tenant who collects mail for the defendant who moved out, or the mother of the homeless son or daughter who collects his or her mail, or the father of a student, where a car is registered, who lives on campus at a distant university.
The main feature of this amendment is that substituted service may be made without due diligence, and is deemed effected upon delivery, pursuant to B&P § 17538.5. Service, however, is not complete until a CMRA complies with B&P § 17538.5(d).
B&P Code § 17538.5, governs how a CMRA must operate. It sets forth requirements and obligations.
It imparts several duties on a CMRA, and upon receipt of service, it shields them from liability to the box holder. As a condition to accept mail for a mail receiving customer, the CMRA must accept 2 forms of ID before renting the customer a box. The mail receiving customer must sign an agreement affirmatively appointing the CMRA as its agent for service. That form, or any amendment or correction to the form, contains a home or personal address.
Because of this affirmative appointment of the CMRA as its agent for service, it could be argued that service on the CMRA is a personal service, not a substituted service. Service under B&P Code § 17538.5(d) could be construed as a form of personal service, akin to CCP § 416.90 wherein a defendant authorizes another to accept service on their behalf. This can only be valid if – and only if – the 3d party, here, the CMRA, fully complies with the B&P § 17538.5(d).
Under B&P Code § 17538.5(d), the CMRA is required to
- accept any service of process for the mail receiving customer for up to 2 years after the customer terminates the agreement;
- Within 48 hours after receiving the process, the CMRA must place a copy of the process in the box of the mail receiving customer (unless the agreement has been terminated);
- Within 5 days, the CMRA must mail a copy of the served documents to the mail receiving customer to their last known home or personal address;
- The CMRA must purchase a Certificate of Mailing (PS Form 3817) for $1.35 which can only be obtained by standing in line and mailing the documents at a US Postal Service office;
- If the CMRA has complied with these requirements, the CMRA must provide any involved party, a declaration under penalty of perjury of the mailing and attach a copy of the Certificate of Mailing, stamped by the USPS.
Service under the new CCP § 415.20(c) is deemed effected 10 days after the CMRA mails the copy to the defendant at the last known home or personal address on the agreement form.
Source: Process Server Institute