
(Author’s note: this isn’t just a problem in California– others dig their heels in, too, particularly in Ohio and Maryland. It’s a state court issue, from coast to coast, but Los Angeles has been the problem child of late.)
For the most part, the work I’ve done in this little niche over the past twelve years has been rewarding and uncontroversial. The biggest frustration I encounter in the nuts & bolts side of my practice is failed service despite our best efforts, because some foreign bureaucrat doesn’t want to do his job. There’s precious little we can do about that, so as long as expectations are managed, even that frustration doesn’t keep me up at night. Lately, though, we’ve seen a surge in rejection of proofs of service by court clerks who just don’t know what they’re talking about. It’s been an increasing problem just recently in Los Angeles County Superior, where I’ve never really encountered many roadblocks.
And yet…
For some reason this summer, the clerk’s office in L.A. has been demanding that we provide a wet ink (SRSLY?) copy of Form POS-010, the standard California proof of service with an inadvertently hilarious epically unfortunate acronym. Sorry to break it to you, folks, but no.
The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid.
For starters, service effected pursuant to Article 5 of the Hague Service Convention is proved up by a specific form– a Certificate— mandated by Article 6. It’s truly all the proof you need, thanks to that pesky old Supremacy Clause. In case you’ve forgotten those two semesters of ConLaw…
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Yep. That one. (Emphasis mine, of course.)
Pretty easy to make the clerk’s argument collapse pretty quickly. Article 5 service is proved up by a Certificate issued by various foreign officials, and the U.S. court must accept it. Period. No debate. Do not pass GO, do not collect $200.
But it gets a little murkier when service is effected pursuant to Article 10(b) because there’s no form of proof prescribed by the treaty. CCP § 417.10 lays out how to prove up service effected within California, and that’s by affidavit. In pertinent part:
(a) If served under Section 415.10, 415.20, or 415.30, by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.
Seems to support our argument, doesn’t it?
Ah, but wait. Keep reading and you’ll find the problem:
(f) All proof of personal service shall be made on a form adopted by the Judicial Council.
Okay, so the clerk isn’t just being bullheaded. But you still have to push back.
The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid. Therein lies the logic behind the affidavit– it fulfills the § 417.10(a) mandate that time, place, and manner of service be demonstrated, but it goes beyond that to demonstrate the proper treaty article in play, as well as the identity of who’s calling the shots. At that, §§ 415.10, 415.20, and 415.30 aren’t specifically applicable to service abroad either, so the applicability of § 417.10 at all is tenuous at best. [To be sure, § 413.10(c) covers service abroad as to method, deferring to the law of the foreign jurisdiction– not as to proof form.]
The net result of insisting on the POS-010 is really just more paperwork on the clerk’s desk– more follow up to do.
Accepting what we provide means less work for the clerk, because the judge isn’t going to come back and query how this overseas effort was legal.
Push back– it’s better for everyone.