Litigation
Service of Process
In the event the case does not settle it becomes necessary to initiate litigation. Personal injury litigation starts with the drafting of the complaint.
Click here for sample of the complaint.
Once the personal injury complaint has been filed with the appropriate court the complaint must be personally delivered to the defendant. This is called service of process. The rules for service of process that would apply to a car accident or other personal injury case can be found in the California Code of Civil Procedure or CCP.
The following are some of the key statutes.
This statute provides rules for service that can be use in a car accident or other personal injury case for personal service.
Cal Code Civ Proc § 415.10 (2008)
§ 415.10. Personal delivery; Completion of service
A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.
The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective.
Cal Code Civ Proc § 415.20 (2008)
This statute provides rules for service that can be use in a car accident or other personal injury case when service is completed by what is usually called substitute service.
§ 415.20. Leaving and mailing copies; Where and with whom; When service deemed complete
(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
This statute provides rules for service that can be use in a car accident or other personal injury case when the defendant lives in a gated community.
§ 415.21. Access to gated community to serve process or subpoena
(a) Notwithstanding any other provision of law, any person shall be granted access to a gated community for a reasonable period of time for the purpose of performing lawful service of process or service of a subpoena, upon identifying to the guard the person or persons to be served, and upon displaying a current driver’s license or other identification, and one of the following:
(1) A badge or other confirmation that the individual is acting in his or her capacity as a representative of a county sheriff or marshal.
(2) Evidence of current registration as a process server pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code.
(b) This section shall only apply to a gated community that is staffed at the time service of process is attempted by a guard or other security personnel assigned to control access to the community.
This statute provides rules for service that can be use in a car accident or other personal injury case for service by mail.
Cal Code Civ Proc § 415.30 (2008)
§ 415.30. Service by mail; Articles mailed; Form of notice; When service complete; Liability for expense on failure to return acknowledgment; Approved form
(a) A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.
(b) The notice specified in subdivision (a) shall be in substantially the following form:
(c) Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.
(d) If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses whether or not he is otherwise entitled to recover his costs in the action.
(e) A notice or acknowledgment of receipt in form approved by the Judicial Council is deemed to comply with this section.
This statute provides rules for service that can be use in a car accident or other personal injury case when the defendant lives out of state.
Cal Code Civ Proc § 415.40 (2008)
§ 415.40. Service outside state; Completion of service
A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.
This statute provides rules for service that can be use in a car accident or other personal injury case when real service cannot be accomplished.
§ 415.50. Service by publication; Prerequisite affidavit; Order for publication in named newspaper; When service complete; Service other than by publication.
(a) 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 either:
(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.
(2) 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.
(b) 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. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. 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.
(c) Service of a summons in this manner is deemed complete as provided in Section 6064 of the Government Code.
(d) Notwithstanding an order for publication of the summons, a summons may be served in another manner authorized by this chapter, in which event the service shall supersede any published summons.
(e) As a condition of establishing that the party to be served cannot with reasonable diligence be served in another manner specified in this article, the court may not require that a search be conducted of public databases where access by a registered process server 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.
Depositions
In many personal injury cases that are brought in the Walnut Creek area it is necessary to initiate litigation. Most of the defense firms that represent insurance companies in the Walnut Creek area follow a relatively predictable patterns of practice. In most cases litigated in the Walnut Creek area you can expect that one of the first steps taken by a insurance defense firm when defending a car accident case is to set the deposition of the plaintiff.
Personal injury and car accident cases brought in the Walnut Creek area focus on medical history, how the car accident happened, the extent of personal injury and the medical treatment involved.
Personal injury and car accident cases brought in the Walnut Creek are governed by the California Code of Civil Procedure. The following are some of the laws that apply. Expert depositions will be covered in another section.
Cal Code Civ Proc § 2025.010 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Taking of oral deposition by any party; What persons may be deposed
Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010) and Chapter 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.
Cal Code Civ Proc § 2025.210 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: How oral deposition to be taken; Time of service
Subject to Sections 2025.270 and 2025.610, an oral deposition may be taken as follows:
(a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.
(b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.
Cal Code Civ Proc § 2025.220 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Contents of deposition notice; Deposition subpoena as notice where only business records of nonparty are sought
(a) A party desiring to take the oral deposition of any person shall give notice in writing. The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under Section 2025.270, and the time it will commence.
(3) The name of each deponent, and the address and telephone number, if known, of any deponent who is not a party to the action. If the name of the deponent is not known, the deposition notice shall set forth instead a general description sufficient to identify the person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any materials or category of materials to be produced by the deponent.
(5) Any intention by the party noticing the deposition to record the testimony by audio or video technology, in addition to recording the testimony by the stenographic method as required by Section 2025.330 and any intention to record the testimony by stenographic method through the instant visual display of the testimony. If the deposition will be conducted using instant visual display, a copy of the deposition notice shall also be given to the deposition officer. Any offer to provide the instant visual display of the testimony or to provide rough draft transcripts to any party which is accepted prior to, or offered at, the deposition shall also be made by the deposition officer at the deposition to all parties in attendance. Any party or attorney requesting the provision of the instant visual display of the testimony, or rough draft transcripts, shall pay the reasonable cost of those services, which may be no greater than the costs charged to any other party or attorney.
(6) Any intention to reserve the right to use at trial a video recording of the deposition testimony of a treating or consulting physician or of any expert witness under subdivision (d) of Section 2025.620. In this event, the operator of the video camera shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney of any of the parties.
(b) Notwithstanding subdivision (a), where under Article 4 (commencing with Section 2020.410) only the production by a nonparty of business records for copying is desired, a copy of the deposition subpoena shall serve as the notice of deposition.
Cal Code Civ Proc § 2025.230 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Description of matters on which examination is requested when deponent named is not a natural person; Production of most qualified persons at deposition
If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.
Cal Code Civ Proc § 2025.240 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Notice to all parties who have appeared; List of parties or attorneys; Service on consumer; Service of deposition subpoena along with deposition notice
(a) The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action. The deposition notice, or the accompanying proof of service, shall list all the parties or attorneys for parties on whom it is served.
(b) If, as defined in subdivision (a) of Section 1985.3 or subdivision (a) of Section 1985.6, the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the subpoenaing party shall serve on that consumer or employee all of the following:
(1) A notice of the deposition.
(2) The notice of privacy rights specified in subdivision (e) of Section 1985.3 or in subdivision (e) of Section 1985.6.
(3) A copy of the deposition subpoena.
(c) If the attendance of the deponent is to be compelled by service of a deposition subpoena under Chapter 6 (commencing with Section 2020.010), an identical copy of that subpoena shall be served with the deposition notice.
Cal Code Civ Proc § 2025.250 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Place of taking deposition
(a) Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.
(b) The deposition of an organization that is a party to the action shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the organization’s principal executive or business office in California, or within the county where the action is pending and within 150 miles of that office.
(c) Unless the organization consents to a more distant place, the deposition of any other organization shall be taken within 75 miles of the organization’s principal executive or business office in California.
(d) If an organization has not designated a principal executive or business office in California, the deposition shall be taken at a place that is, at the option of the party giving notice of the deposition, either within the county where the action is pending, or within 75 miles of any executive or business office in California of the organization.
Cal Code Civ Proc § 2025.260 (2008 applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Motion for deposition to take place at more distant location; When permitted; Factors to be considered; Expenses and costs; Monetary sanction
(a) A party desiring to take the deposition of a natural person who is a party to the action or an officer, director, managing agent, or employee of a party may make a motion for an order that the deponent attend for deposition at a place that is more distant than that permitted under Section 2025.250. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any factor tending to show whether the interests of justice will be served by requiring the deponent’s attendance at that more distant place, including, but not limited to, the following:
(1) Whether the moving party selected the forum.
(2) Whether the deponent will be present to testify at the trial of the action.
(3) The convenience of the deponent.
(4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.
(5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.
(6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.
(7) The whereabouts of the deponent at the time for which the deposition is scheduled.
(c) The order may be conditioned on the advancement by the moving party of the reasonable expenses and costs to the deponent for travel to the place of deposition.
(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to increase the travel limits for a party deponent, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Cal Code Civ Proc § 2025.270 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Days between service of deposition notice or issuance of deposition subpoena and scheduling of oral deposition; Unlawful detainer actions; Motion to shorten or extend time or for stay
(a) An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.
(b) Notwithstanding subdivision (a), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, an oral deposition shall be scheduled for a date at least five days after service of the deposition notice, but not later than five days before trial.
(c) Notwithstanding subdivisions (a) and (b), if, as defined in Section 1985.3 or 1985.6, the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the deposition shall be scheduled for a date at least 20 days after issuance of that subpoena.
(d) On motion or ex parte application of any party or deponent, for good cause shown, the court may shorten or extend the time for scheduling a deposition, or may stay its taking until the determination of a motion for a protective order under Section 2025.420.
Cal Code Civ Proc § 2025.280 (2008) applies to personal injury and car accident cases brought in the Walnut Creek area and deals with: Effect of service of deposition notice; When deposition subpoena is required
(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document or tangible thing for inspection and copying.
(b) The attendance and testimony of any other deponent, as well as the production by the deponent of any document or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena under Chapter 6 (commencing with Section 2020.010).
