Judicial Council Forms Hold Clues To California Procedural Questions
© 2011 by Julie A. Goren, Esq.
When a California state court procedural question arises, the answer, or at a minimum, a direct path to the answer, may be found in the text of a Judicial Council form. Available for free on the California courts website (http://www.courts.ca.gov/), Judicial Council forms are either adopted for mandatory use or approved for optional use. Either way, they provide convenient references to the applicable codes and rules – the governing authority is located on the lower right-hand corner of the form. In addition, they may contain specific answers to key questions, provide helpful hints, and even serve as procedural checklists. This article highlights two of those forms: the Civil Case Cover Sheet and the Proof of Service of Summons.
Civil Case Cover Sheet
As a general rule, a Civil Case Cover Sheet (mandatory Judicial Council form CM-010) must be filed with the complaint in all California Superior Court cases. The few exceptions to that rule are conveniently listed in the Notice box at the bottom of the Civil Case Cover Sheet itself – they are not to be filed in Small Claims cases or cases under the Probate, Family, or Welfare and Institutions codes.
The second entry in the Notice box advises that the form must be filed “in addition to any cover sheet required by local court rule.” This language, taken from C.R.C. Rule 3.220, is presumably intended to clarify that filing a local form would not satisfy the requirement of filing form CM-010. However, it gives the filer an important hint – to check applicable local rules for any such requirement. By way of example, Alameda County and Los Angeles County have mandatory local forms called “Civil Case Cover Sheet Addendum,” and Ventura County requires a “Declaration of Court Assignment.”
Another question purportedly answered in the Civil Case Cover Sheet is the type of case in which the Civil Case Cover Sheet must be served. The same Notice box advises that it must be served in complex cases. Although this is true, the statement is outdated, and thus misleading. C.R.C. Rule 3.220 was amended effective January 1, 2009, to provide: “If the plaintiff indicates on the cover sheet that the case is complex under rule 3.400 et seq. or a collections case under rule 3.740, the plaintiff must serve a copy of the cover sheet with the complaint.” The language in the Notice box of the Civil Case Cover Sheet should have been concurrently revised to reflect that change, but it has not been revised since July 1, 2007. (Effective/revision dates are printed on the bottom left-hand corner of each form.)
Proof Of Service Of Summons
There are various methods by which a defendant may be served with process. Each method has its own very specific requirements; failure to dot the “I’s” and cross the “T’s” may result in defective service. The Proof Of Service Of Summons form (mandatory Judicial Council form POS-010), which is prepared and filed after service is completed, provides important clues with respect to those service requirements. Essentially a declaration stating what was done to effect service, the form can serve as a guide before attempting service.
Substituted service, found at #5b of the form, is a good example. The text of the form makes clear that the summons and complaint may be left with the person apparently in charge at the office or usual place of business of the person to be served, or with a competent member of the household at the residence of the person to be served, etc. After leaving the documents, however, an additional step must be taken to complete substituted service. Although this requirement appears at #5b(4) of the form, it is not obviously mandatory as it follows a checkbox (leaving the implication that it may or may not apply). Fortunately, the form references C.C.P. § 415.20 in the same sentence. A review of that statute reveals that a copy must be mailed to the person to be served at the place where the copies were left.
There is one more checkbox under the substituted service section of the form, this one stating that a “declaration of diligence” is attached. Again, C.C.P. § 415.20, cited in the form, explains what that is and when it is required – a declaration of diligence stating actions taken to attempt personal service is required where the person being served is an individual. A review of this portion of the form prior to effecting service on an individual by this method would serve as a reminder that reasonably diligent attempts to personally serve must first be made. Reviewing the text of the form before filing it would serve as a reminder to attach this essential declaration.
The reference to C.C.P. § 415.20 is extremely helpful for yet another reason. It provides that substituted service is deemed complete on the 10th day after mailing. Without that key information, defendant’s response deadline cannot be calculated accurately.
Another service method authorized in California is service by mail via Notice and Acknowledgment of Receipt. This method only works if the defendant signs and returns the Acknowledgment of Receipt form (mandatory Judicial Council form POS-015). The Proof Of Service Of Summons form addresses service by this method at #5c. A review of that portion of the form prior to attempting service would serve as a reminder that the documents to be served must be mailed with two copies of the Notice and Acknowledgment of Receipt form and a postage-prepaid return envelope. This is particularly helpful because there is no such warning on the POS-015 itself.
Form POS-010 points to another key requirement for properly establishing service by this method – the completed Notice and Acknowledgment of Receipt form must be attached to Form POS-010. Without it, proof of service is not established. Again, the form references the code section governing this method of service. In that regard, C.C.P. § 415.30 provides that service is deemed complete on the day the defendant signs the Acknowledgment section of the Notice and Acknowledgment of Receipt form.
There is no question that the text of the Judicial Council forms can be quite helpful, and the embedded citations to applicable codes and rules save the time it would take to look them up. A thorough and up-to-date procedural guide, like Litigation By The Numbers®(updated every January and July), can save even more valuable time, and help avoid costly errors. For example:
- The January 2009 Update revised the section on Civil Case Cover Sheets to add that they must be served in collections cases.
- There are warnings in at least two places to check for a local equivalent to the Civil Case Cover Sheet, and the Alameda, Los Angeles, and Ventura County forms are specifically mentioned.
- The section on substituted service makes clear that a copy of the documents must always be mailed, and that a declaration of diligence is required where service is on an individual.
- The step-by-step instructions for service by mail with Notice and Acknowledgment of Receipt specify that two copies of the Notice and Acknowledgment must be mailed along with a self-addressed stamped envelope. That section also recommends calendaring a tickler so that if the Acknowledgment of Receipt is not returned timely, the documents can be sent out for personal service.
- For each method of service of process, the deemed effective date is provided, so that the defendant’s response deadline can be calculated accurately.
Julie A. Goren, Esq. is the author of Litigation By The Numbers®, the essential handbook updated every January and July with 460 pages devoted solely to the intricacies of California civil litigation procedure. For more information about these publications, including excerpts and testimonials from attorneys, paralegals, and legal secretaries, please go to www.litigationbythenumbers.com.