What's the Difference Between a Subpoena and a Summons in California?
What Is a Summons?
A summons is the document that officially notifies you that a civil lawsuit has been filed against you and that you must respond. In California, the Judicial Council Form SUM-100 is the standard summons. When a plaintiff files a civil complaint, the court issues a summons, which is then served on each defendant along with the complaint. The summons tells the defendant how many days they have to respond (usually 30 days) and warns them that a default judgment may be entered if they don't.
What Is a Subpoena?
A subpoena is a legal order compelling a person or organization to do something in connection with a case that's already in progress. The most common types are: a subpoena for personal appearance (compelling someone to testify at a hearing or trial), a deposition subpoena (compelling appearance and/or document production at a deposition), and a subpoena duces tecum or business records subpoena (compelling production of specific documents or records). Subpoenas are typically issued during the discovery phase of litigation, not at the beginning.
Who Issues Each Document?
A summons is issued by the court upon the filing of a complaint — the clerk of court signs and seals the summons. A subpoena, by contrast, can be issued by an attorney of record in the case without court approval under California law (CCP 1985). Attorneys have the power to issue and sign subpoenas directly. This is why you may receive a subpoena bearing an attorney's signature rather than a judge's or clerk's.
How Each Document Is Served
A summons must be served by personal delivery or substitute service under CCP 415.10-415.20 — the rules are strict because it's the formal start of a lawsuit against you. A subpoena generally requires personal service as well under CCP 1987, with witness fees and mileage tendered at the time of service for personal appearance subpoenas. Business records subpoenas have their own rules under CCP 2020.410-2020.440 and don't always require the same witness fee tender.
What Happens If You Ignore Each
Ignoring a summons means the plaintiff can apply for a default judgment against you — they can potentially win the case without you participating. Ignoring a subpoena can result in contempt of court, which can carry fines and even incarceration. Neither document should be ignored. If you receive either a summons or a subpoena, consult an attorney promptly to understand your obligations and options.
Key Differences at a Glance
A summons initiates a lawsuit; a subpoena arises during an existing case. A summons makes you a party to a case; a subpoena may compel you even if you're not a party. A summons is issued by the court; a subpoena can be issued by an attorney. Both require proper service to be legally enforceable, and both have serious consequences if ignored.
Frequently Asked Questions
Can I receive a subpoena if I'm not involved in a lawsuit?
Yes. Subpoenas can be served on anyone who has relevant information or records, even if they're not a party to the case. Businesses, banks, hospitals, and individuals are all commonly subpoenaed as third-party witnesses.
Do I have to pay witness fees when serving a subpoena in California?
For personal appearance subpoenas (requiring someone to attend a deposition or hearing), witness fees and mileage must generally be tendered at the time of service. The standard witness fee for California civil cases is set by statute.
What is the difference between a deposition subpoena and a trial subpoena?
A deposition subpoena compels appearance at an out-of-court deposition, which is a question-and-answer session under oath. A trial subpoena (or subpoena for trial) compels appearance at court to testify. Both require proper service.
Can a subpoena be served by mail?
Generally, no — personal service is required for subpoenas compelling personal appearance. Business records subpoenas may have different requirements. Check with an attorney to confirm the applicable service rules for your specific subpoena type.
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Northbound Legal handles personal appearance, deposition, and business records subpoenas throughout Richmond, Contra Costa County, and the Bay Area.
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