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Court Services Division Manual / Volume 6 - Civil Management Bureau (CMB) / Manual of Civil Procedure / 6-07/000.00 Summons and Complaint

6-07/630.00 Person Sued in Representative Capacity


6-07/620.00 Political Candidates
6-07/640.00 Individuals and All Other Defendants

Often a defendant is sued in a representative capacity, e.g., trustee of a trust, executor of an estate.  In making service, a deputy’s sole duty in that respect, is to deliver to the defendant a copy of the summons and complaint and make return of that fact.  It is not necessary in making service that the sheriff shall announce to a defendant the capacities in which he is sued or in what capacity he is served.  He is informed of that by the complaint and summons.  (Morrisey v. Gray, 162 CA 638 (1912))  The return of service should specifically show all the capacities in which the defendant is served.

Although most persons (natural or artificial) have the capacity to sue or defend a civil action (American Alternative Energy Partners II v. Windridge, Inc. 42 CA 4th 551), there are certain exceptions, including the following:

Minors and incompetents lack capacity to sue in their own names or to defend an action brought against them.  Litigation must be conducted through a guardian, conservator of the estate or guardian ad litem. (CCP 372(a))

A probate or trust estate is not a legal entity, but a collection of assets and liabilities.  Having no capacity to sue or be sued, litigation must be maintained by or against the executor or administrator of the estate. (Tanner v. Best 40 CA 2d 442; CCP 369; Estate of Bright v. Western Air Lines 104 CA 2d 827)  In an action filed against "Estate of Jones,” the complaint was amended to substitute the executors of the estate as defendants.  (Lazar v. Estate of Lazar, 208 CA 2d 561)

Service of process on a trustee under deed of trust or mortgage does not impose any obligation on the trustee to notify the trustor or beneficiary of the action.  (CC 2937.7) 

An action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.  (PROB 550; PROB 552).

Before a summons against an individual sued in a representative capacity is assigned out for service, the “Notice to the Person Served” at the bottom of the summons shall be completed by (1) marking the box “as an individual defendant.”  If the summons is served using the substitute method, both copies of the summons shall be completed in this manner.

When completing the Proof of Service, be sure to include all information regarding the person served and the manner of such service.   EXAMPLE:  “Serve Tom Jones, as Trustee of Jones Family Trust No. 5.”  The process server makes contact with Tom Jones.  The Proof of Service should state the party served: Tom Jones, as Trustee of Jones Family Trust No. 5.  The address of the service must appear on the Proof of Service.  You must indicate the manner of service as personal (CCP 415.10). 

If the service is made by substitution (CCP 415.20), you must include the name and title or relationship.  The party must be informed of the general nature of the process.  The name of the party must still be indicated.  A copy of the Summons and Complaint must be mailed to the Party served.  Service by substitution must show attempts (diligence).  Dates and times of all previous attempts of service declaration of diligence must documented on the Proof of Service.  The declaration of diligence will be on an attached page.