When a Process Server Lies: Kappel v. Bartlett (1988)

What can you do if a process server falsely claims to have served you, and you lose a lawsuit because of it?

What Happened

An attorney named Karl Kappel was sued by a former client. A process server signed a declaration under penalty of perjury saying he had personally handed Kappel the papers. Kappel said that never happened. He was working in another county that day.

Because the court believed the declaration, it entered a default against Kappel. The former client won about $92,000, including punitive damages, and the marshal seized Kappel's property. Kappel got the default vacated and then sued the process server and the company he worked for.

What the Court of Appeal Decided

The trial court threw out Kappel's lawsuit, finding it was filed too late. The Court of Appeal reversed.

The court held that California has no civil claim for "perjury." But knowingly signing a false proof of service can support a claim for abuse of process, which covers misuse of court procedures. The court also allowed claims for negligence, reasoning that process servers owe a duty of care to the people they serve.

On timing, the court held that Kappel's claim did not begin when the false declaration was signed. It began when he was actually harmed, which was when his property was seized. His lawsuit was therefore on time.

The court also agreed that a person "was under no duty to act upon a defectively served summons."

A Note on Later Cases

Kappel also said service rules should be "strictly construed." Later courts, including Summers v. McClanahan (2006), have rejected that strict approach in favor of a more generous reading. Kappel's holdings on process server liability remain useful.

Kappel v. Bartlett (1988) 200 Cal.App.3d 1457.

This post is general information, not legal advice.