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County of San Diego v. Gorham (Cal. Ct. App. - July 21, 2010)

By Shaun Martin

There's always been a part of me that's profoundly concerned with a lot of default judgments. We routinely base them -- as we must -- on declarations of service. The affidavits of service almost always look fine. But what if the process server is simply lying? Wouldn't it be totally easy just to say you've served someone, and instead go out and have a beer? The consequences for the defendant are severe, and how could we ever catch the process server in the lie?

Here's one way. When the person allegedly served was incarcerated when they were allegedly served at a place they hadn't lived over a year. When that's the case, well, it's pretty easy to catch.

But that's pretty unusual. In most cases, it'll be the "neutral" process server's word against the self-interested defendant's. Or, more often, the process server's completed declaration versus nobody, since the defendant won't show up. In such settings, who wouldn't believe the process server?

I can't devise a better system. We have to rely on people's word at some level. But here's a setting in which I'm not sure that reputational and other incentives really work, if only because of the low likelihood of getting caught. So it's a potential problem without any real solution. Except in cases like this one, which is the exceptionally rare case in which (1) we can be pretty sure the process server committed perjury, and (2) we can also be pretty sure that the allegedly served defendant had a totally good defense on the merits.

Small solace.

Full post as published by California Appellate Report on July 21, 2010 (boomark / email).