Van De Kamp, 030784 CAAGO, AGO 83-603

Docket Nº:AGO 83-603
Case Date:March 07, 1984
Court:California
 
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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 summons2, 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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