JOHN K. VAN DE KAMP Attorney General
ANTHONY S. DA VIGO Deputy Attorney General
AGO 83-603
No. 83-603
California Attorney General Opinion
Office of the Attorney General State of California
March 7, 1984
THE
HONORABLE JAMES A. CURTIS, ACTING COUNTY COUNSEL, COUNTY OF
NEVADA, has requested an opinion on the following question:
May the
deputy in charge of the civil division of a sheriffs office
execute a certificate of service with respect to a summons or
subpena actually served by another deputy?
CONCLUSION
The
deputy in charge of the civil division of a sheriffs office,
being reliably informed in the matter, may execute a
certificate of service with respect to a summons or subpena
actually served by another deputy.
ANALYSIS
The
inquiry presented is whether the deputy in charge of the
civil division of a sheriffs office may execute a certificate
of service with respect to process actually served by another
deputy. We are advised that it is the practice of numerous
county sheriffs' offices in making their return of
service on various papers including summons and subpena to
have the deputy in charge of the office civil division, or
some other designated deputy, execute the certificate of
service after a field patrol deputy has effected service. In
making the return of service, the sheriffs office provides
the name of the patrol deputy who effected the service.
Generally,
a summons may be served by any person who is at least 18
years of age and not a party to the action. (Code Civ. Proc,
§ 414.10.)
1 Section 417.10 provides that "[p]roof
that a summons was served . . . shall be made . . . by
affidavit of the person making such service. . .
." (Emphasis added.) Service of a subpena may be made by
any person. (§ 1987; 36 Ops.Cal.Atty.Gen. 4, 5 (1960).)
With respect to section 417.10 pertaining to proof of service
of summons
2, it is clear, at least with respect to
persons other than designated peace officers, that the person
making the delivery must make the affidavit.
(Sternbeck v. Buck (1957) 148 Cal.App.2d
829, 838-839.) The court, in its opinion on denial of
rehearing, stated (id, 839):
"For
this court to hold that a process server can delegate his
authority, as was done in the case at bar, and then legally
execute and file the above affidavit, would be for us to
encourage perjury in the filing of false affidavits. It
matters not that the plaintiff in the instant case actually
received the documents. To countenance the illegal practice
in this case would be to invite every process server to
delegate his authority and then file an affidavit based
upon the hearsay and
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