Message in a bottle: reconsidering service by publication

Maybe, like me, you sometimes sit around and think about service by publication.

In California, a party may serve another party by publishing the complaint or other court papers in a newspaper in the area where the person to be served is likely to be. (CCP § 415.50(b).)  The notice must be published in the paper, once a week for four weeks in a row. (Id.; Gov. Code § 6064.)  Before one can obtain an order to serve by publication, one has to make reasonable efforts to effect personal service. (CCP § 415.50(a) & (e), Judicial Council of Cal. Com. ["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, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessor's office, near the defendant's last known location, are generally sufficient."] [citations omitted].) 

Service is deemed complete on the last day of required publication. (CCP § 415.50(c).)  If the person being served by publication doesn't respond within the prescribed amount of time after the newspaper began publishing the notice, the serving party can file a request for default. (CCP § 415.50; Govt. Code § 6064 ["The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day."].)

California courts have upheld service by publication as constitutional. (See, e.g., Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40.) Courts recognize that service by publication "is on many occasions unlikely to result in actual notice" and is generally a form of "constructive service." (Id.) Thus the safety valve of CCP § 473.5, which "reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside." (Id.; CCP § 473.5(a) ["When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action."].) 

"Personal service remains the method of choice under the statutes and the constitution" (Olvera, supra, 232 Cal.App.3d at p. 41), but "[c]onsistent with the notions of fair play and due process, ... service by publication is 'a last resort' when 'reasonable diligence to locate a person in order to give him notice before resorting to the fictional notice afforded by publication' has been exercised." (Calvert v. Al Binali (2018) 29 Cal. App. 5th 954, 963.)

You can turn to the back of this paper (or click over to the Legal Notices section) to see some examples of these notices being served by publication. You'll find summonses, orders to show cause for name changes, etc. In the Civil section of the Legal Notices, the notices for summonses advise the named party that they are being sued, state the case number, where the case was filed, when the named party needs to respond, contact information for the plaintiff's attorney, what the sued party is being sued for, what the plaintiff is seeking, etc. (See CCP § 412.20 [setting out required form of summons].)

Service by publication is, as noted, a kind of final resort, a legal fiction to fall back on where no other solution would work. (See Calvert, supra, 29 Cal. App. 5th at p. 963.) When a plaintiff can't find a defendant after exercising reasonable diligence, it would be untenable for the case to end there, so the legal system had to create the fiction of service by publication. Service by publication rests in part on the somewhat dubious idea that people out there, including unknowing defendants, are carefully combing through notices in tiny fonts in the back sections of newspapers. Never mind that notices are often published in small, local newspapers with limited circulations. What are the chances a named defendant will pick up the Burbank Bee, the Malibu Post, or the Lincoln Park Ledger? (Those are made-up publications.) 

The U.S. Supreme Court discussed the tenuousness of the logic behind service by publication in a 1950 decision: "It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed." (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 309 (1950).)

This procedure has always struck me as a necessary but weird (dare we say Kafkaesque?) legal fiction. (Cf. Kafka, An Imperial Message, collected in The Complete Stories (1995) p.9.) It would be fascinating to find out when the last time was that a defendant actually found out they were being sued while perusing the Legal Notices section of a newspaper over their lunch break. The very frangibility of the legal fiction is why relief is so regularly granted on a timely CCP § 473.5 motion. (See Olvera, supra, 232 Cal.App.3d 32 at p. 40.)

And perhaps a column in a daily legal newspaper is an odd place to suggest this, but in 2025, we might think of different ways to try to serve by publication. (To be clear, the opinions that follow are my own.) Newspaper readership seems to be down, generally. Local newspapers around the country have been shutting down due to a lack of readership. (See Bauder, Decline in local news outlets is accelerating despite efforts to help, Associated Press (Nov. 16, 2023), available at << https://apnews.com/article/local-newspapers-closing-jobs-3ad83659a6ee070ae3f39144dd840c1b >>.) As local papers disappear, some of the rationale behind statutes like CCP § 415.50  - i.e., that the courts and parties will select newspapers most likely to be read by defendants in the areas they are most likely to be  - starts to decay. As media outlets consolidate through mergers and acquisitions, newspapers become more regional; fewer and fewer neighborhood outlets exist. Expecting potential defendants to read through all the legal notices in, say, the Los Angeles Times or the New York Times seems less reasonable. CCP § 415.50 came into existence at a different time, when newspaper readership was more widespread, with many thriving, diverse local outlets. Perhaps, in recognition of changing times we should consider how service by publication should be accomplished today.

The Los Angeles Superior Court has a central website. Legal notices for cases filed with that court or in that county could be posted in one central location, on the court's central website. Perhaps this would be in addition to publication in a newspaper. Having one central site for legal notices would be more easily searchable and located than having notices scattered across dozens of different publications. If you suspected you might be getting sued sometime soon, you'd know where to look. Other commentators have suggested developing centralized address databases to be maintained by states. (Sutton, Service by Publication: A Modern Alternative (2022) 73 Mercer L. Rev. 965, 980-81.)

Also, one imagines that private services could easily search these centralized court-based legal-notice sites and notify named defendants. As AI tools develop, perhaps corporations or individuals who might worry about being named in a lawsuit might have AI bots regularly checking the web for mention of their names; having a centralized site with legal notices would probably make it more likely that someone named in a complaint would find out about it.

Or perhaps I've missed the point of service by publication, which is that it is not in fact intended or expected to give actual notice, but serves instead as a kind of legal fig leaf, allowing everyone involved to say it was always possible the defendant might come across the notice - kind of like what a castaway on a desert island tells himself when tossing a message in a bottle into the sea in the hopes that his family might one day receive it.

But assuming instead that the idea behind service by publication is to make some effort at trying to actually notify a named party when the regular methods have failed, centralization with a court-published set of legal notices may make it more likely that that might happen. Who knows? Perhaps this message will arrive on the right shores and be read by the people who need to receive it.