BILL ANALYSIS
AB 496
Page 1
Date of Hearing: April 5, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 496 (Aghazarian) - As Amended: March 30, 2005
SUBJECT : SERVICE OF PROCESS
KEY ISSUES :
1)SHOULD CERTAIN NON-DISPUTED CHANGES BE MADE TO THE LAWS
REGARDING SERVICE OF PROCESS WHICH WOULD CREATE GREATER
EFFICIENCY IN THE LEGAL SYSTEM?
2)SHOULD THE COMMITTEE CONSIDER AMENDING THE BILL TO OMIT
CERTAIN CONTROVERSIAL PROVISIONS WHICH ARE UNCLEAR, MAY LEAD
TO INCREASED LITIGATION, ARE UNNECESSARY, OR RAISE DUE PROCESS
CONCERNS?
SYNOPSIS
This bill, sponsored by process servers, seeks to amend several
statutes pertaining to service of process. Several of the
provisions are uncontroversial. These include requiring the
court clerk to retain the original summons and eliminating
certain notice and service requirements when a subpoenaing party
is subpoenaing his or her own records.
More controversially, however, the bill seeks to preclude
private investigators, attorneys, and their employees from
serving process except in those cases in which an attorney or
private investigator is providing professional services. This
provision is opposed by private investigators because they
contend that private investigators have historically been
allowed to serve process and that their licensing requirements
already provide greater consumer protections than do the
process-server registration requirements. The bill also
specifies that those exempt from the registration process are
not considered registered process servers and therefore have
none of the rights and privileges of a process server. It is
unclear why this provision is necessary and what rights and
privileges a process server possesses in contrast to
unregistered persons who are nevertheless authorized to serve
process.
AB 496
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The bill would also allow registered process servers to collect
on the cost of a levy prior to serving the levy. This would
allow the seizure of a judgment debtor's assets for an amount
that is speculative. As written, the bill contains conflicting
language and could lead to a double-recovery on the amount of
service of process.
The bill seeks to clarify service on a prisoner and would
provide that service on a sheriff or jailer would constitute
personal service unless the sheriff or jailer notifies the
serving party of non-delivery. This provision appears to
greatly limit the sheriff or jailer's obligation to deliver
papers served upon them for a prisoner in their custody and may
lead to increased litigation for reasons specified in the
analysis below.
SUMMARY : This bill makes several changes to different statutes
related to service of process. Specifically, this bill :
1)Requires the court clerk, after issuing summons, to keep the
original and give a copy to the plaintiff.
2)Eliminates the requirement that a consumer or employee whose
records are subpoenaed receive notice and be served with
specific documents when the subpoenaing party is the consumer
or employee (respectively), and s/he is the only subject of
the subpoenaed records.
3)Limits the exemption currently granted to attorneys, private
investigators, and their employees from registering as process
servers as applying only to those cases in which they are
providing professional services.
4)Provides that persons who are not required to register as
process servers shall not be deemed registered process servers
and shall have none of the rights or privileges of registered
process servers.
5)Provides that the anticipated cost of levy imposed by section
689.095 may be designated on the notice of levy form as a
recoverable cost of levy based on the judgment creditor's
memorandum of costs.
6)Provides that service of judicial papers upon a sheriff or
jailer for delivery to a prisoner in his or her custody,
AB 496
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constitutes personal service unless the sheriff notifies the
party within two days of the reason for not delivering the
judicial process.
EXISTING LAW :
1)Provides that after payment of all applicable fees, the
plaintiff may have the clerk issue one or more summons for any
defendant. (Code of Civil Proc. section 412.10.)
2)Requires a subpoenaing party to serve on a consumer or
employee whose records are being sought certain specified
documents, including a copy of the subpoena duces tecum and
notice indicating what records are being sought and notifying
the consumer or employee of his or her rights to oppose the
furnishing of the records. (Code of Civil Proc. sections
1985.3(b), 1985.3(e), 1985.6(b), 1985.6(e).)
3)Generally requires those who serve process within California
for compensation to register as process servers, but exempts
certain persons from this requirement including attorneys,
private investigators, and their employees. (Bus. & Prof.
Code section 22350.)
4)Provides that costs are added to and become part of the
judgment in certain specified circumstances, including costs
for service of a writ when a writ is served by a levying
officer or registered process server. (Code of Civil Proc.
sections 685.090, 685.095.)
5)Requires that a sheriff or jailer upon whom a paper in a
judicial proceeding, directed to a prisoner in his custody, is
served, must forthwith deliver it to the prisoner, with a note
thereon of the time of its service. For a neglect to do so he
is liable to the prisoner for all damages occasioned thereby.
(Penal Code section 4013.)
FISCAL EFFECT : This bill is keyed nonfiscal as currently in
print.
COMMENTS : According to the sponsor, California Association of
Photocopiers and Process Servers (CAPPS), AB 496 raises several
distinct issues with respect to the logistics of serving legal
process. The sponsor explains that each issue is designed to
streamline, clarify or improve the statutory scheme that governs
AB 496
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the persons who serve legal process.
The Court's Retention Of The Summons May Lead To Greater
Judicial Efficiency. Currently, a party fills in a blank
summons which the clerk "issues" by signing and stamping it, and
returning it to the party. The server is supposed to return the
original summons to the court. (Code of Civil Proc. section
583.210.) Lost summons create inefficiency and obstacles in the
functioning of the court because the clerk does not have a copy
of the summons (e.g., clerks must reject requests for entry of
default because a summons was not returned). In family law
there is already a rule of court that requires the clerk to keep
the original summons in the court file, and it is reportedly
working well. This bill would enact a similar provision for all
other civil cases. Therefore, this provision of the bill
appears to be warranted.
Deleting Superfluous Notice And Service Requirements For Certain
Subpoenas Appears Sensible. Under current law, a party
subpoenaing records must serve certain specified documents on
the person whose records are being sought and must provide
notice to that person. The amendments would delete the service
and notice requirements of Code of Civil Procedure sections
1985.3(b), 1985.3(e), 1985.6(b), and 1985.6(e) when the
subpoenaing party is a consumer or employee subpoenaing his or
her own records. This is a sensible proposal because it allows
parties to obtain their own information without the need to
comply with an unnecessary, time-consuming, and costly procedure
that was intended to protect other people's information from a
party who is seeking it.
Should The Historical Exemption For Registration As A Process
Server For Private Investigators And Others Be Changed Without A
Showing That A Need Exists For Such Change? Persons and
corporations who regularly serve process for compensation must
generally register with the county clerk. There are several
exemptions to this registration requirement, including
attorneys, private investigators, and their employees. This
bill would narrow this exemption by, according to the sponsor,
ensuring "that the purpose of the registration requirement is
not undermined by employees of lawyers or private investigators
engaging [in] process server businesses independent of the cases
being handled by their principals without registering with the
county clerk."
AB 496
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This proposed amendment has generated staunch opposition from
private investigators, generating nearly 100 opposition letters.
The California Association of Licensed Investigators (CALI)
argues that this portion of the bill would "eliminate the
long-standing acknowledgement that licensed private
investigators are entitled to serve process." CALI comments
that existing law approves of this practice by exempting
licensed private investigators from the registration
requirement. The Los Angeles County Criminal Defense
Investigators Association, Inc. observes that compliance with
the process server registration laws would be an unnecessary
duplication of the private investigator licensure process.
Other opponents argue that the private investigator licensure
requirements already provide greater protections to consumers
than do the process registration requirements, including an FBI
background check. Opponents contend that there has been no
finding that the practice of licensed private investigators
serving process has caused any problems for consumers or the
judicial process.
It Is Unclear What Rights And Privileges Exist For Registered
Process Servers Or Why They Need To Be Protected . CAPPS seeks
to add a section to the statute stating that those people who
are exempted from serving process are not registered process
servers and have "none of the rights or privileges of registered
process servers." It is not clear why this amendment is
necessary. The first part of this statement to the effect that
persons who are exempt from registering are not registered
process servers would appear to be simply tautological.
Moreover, supporters have failed to respond to the Committee's
request to identify the rights and privileges at issue.
Should Process Servers Be Permitted To Seize Someone's Property
To Recover Their Costs Even If Their Costs Are Open-Ended And
Potentially Duplicative? CAPPS seeks to add a section to the
statute stating that "The anticipated cost of levy to be imposed
pursuant to Section 685.095 may be designated on the notice of
levy form as a recoverable cost based upon the judgment
creditor's memorandum of costs ?." According to CAPPS, the
provision is necessary because a process server must separately
"pursue the costs of collecting on a judgment after collecting
on the judgment."
The law currently provides that the costs of serving the writ
are included in the judgment. (Code of Civil Proc. section
AB 496
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685.095.) The process servers contend that it is not possible
to collect this amount until after they have served the levy.
Then they must incur additional costs in attempting to collect
on the costs of service of the levy. To prevent this cyclical
problem from occurring, the process servers argue that they
should be allowed to collect the anticipated amount of service
of process before making such service.
While this argument may have appeal at first blush, the
difficulty is that, unlike public officers, process server's
fees are not set by statute. Rather, process servers may
recover whatever amount they actually incur in effecting
service. (Code of Civil Proc. section 1033.5(a)(4)(B).) That
could include the costs of a stake out or other means necessary
to find a person to be served. ( Id. ) Therefore, it appears
that the process servers are seeking to seize from a judgment
debtor the amount they anticipate they will incur in serving
process before they have done so and without limitation. This
appears contrary to current safeguards aimed at protecting the
judgment debtor from having excessive assets seized. Sheriffs
are able to avoid this problem because their fees are
statutorily determined, thereby avoiding the danger of
potentially excessive collections.
The current language of the bill presents additional problems.
It refers to the anticipated costs of levy provided by 685.095.
However, the referenced section provides that the costs of
service of the levy shall become part of the judgment, not the
costs of the levy itself. Second, the bill seeks to recover
these costs by placing them on the notice of levy. A notice of
levy must be served with a writ of execution. (Code of Civil
Proc. section 700.010.) The writ of execution already includes
the costs later added to a judgment, including the cost of
service of the levy. (Code of Civil Proc. section 699.520.)
Therefore, the same cost could be listed on both the notice of
levy and writ of execution, leading to a potential double
recovery.
Might The Amendments To The Penal Code Inadvertently Harm
Prisoners, Expose Sheriffs To More Liability And Create More
Litigation? The current law provides that a sheriff or
jailer, when served with a paper from a judicial proceeding
for a prisoner, must "forthwith deliver it to the prisoner,
with a note thereon of the time of its service." Like other
persons served with legal papers, a prisoner who does not
AB 496
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receive judicial papers may suffer from harsh consequences,
such as entry of a default judgment against him or her.
Despite the apparent simplicity of the statute, CAPPS
argues, "The current procedure for serving an inmate is less
than clear."
CAPPS argues that the bill is designed to ensure that
registered process servers may serve legal papers on the
sheriff/jailer. The current language of the statute already
implicitly requires the sheriff or jailer to accept service
from a registered process server. The addition of language
stating, "Nothing in this section shall limit or restrict
any person who may lawfully serve process from serving
process ?" simply clarifies the existing state of the law.
To that extent, it is not problematic, but may be
unnecessary.
CAPPS also alleges that the bill is designed to clarify what
constitutes personal service on a prisoner. The bill
provides that service of the judicial process by the sheriff
or jailer shall constitute personal service unless the
sheriff or jailer notifies the serving party within two days
of a reason for not delivering the judicial process to the
inmate. According to the current statutory language, a
sheriff/jailer is obligated to deliver the papers to a
prisoner in his or her custody. The amending language
appears to open a significant hole in this obligation by
allowing the sheriff to give any reason for not serving
process. Certainly if the prisoner is not actually in the
custody of the sheriff, the sheriff should not be required
to deliver the papers. But, existing law is clear that the
sheriff's obligation to deliver the papers arises only if
the prisoner is in the sheriff's custody. Although there
could be other non-custody related reasons why a sheriff
might not be able to effect personal service (e.g., a person
is in a coma), these problems occur regardless of whether a
person is a prisoner and are addressed in other areas of the
law. They are beyond the scope of a statute specifically
related to service of process on a prisoner.
Similarly, the bill does not contain a requirement that the
sheriff or jailer notify the serving party in writing of the
custodian's inability to deliver the papers to the prisoner.
This seems to permit oral notification. If someone later
challenges the service or lack thereof, the lack of written
AB 496
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notification would make it very difficult to establish that
the sheriff or jailer did not deliver the papers and may
lead to increased litigation to resolve such disputes. The
Committee is aware of no other provision of the law allowing
service to be defeated by an oral objection, and it would
not appear prudent to introduce such uncertainty into the
service of process rules.
The bill also changes the documents required to be served
under Penal Code section 4013 from "a paper in a judicial
proceeding" to "judicial process." Although the language is
similar, "process" is specifically defined by statute as "a
writ or summons issued in the course of judicial
proceedings" including all "writs, warrants, summons, and
orders of courts of justice, or judicial officers." (Code
of Civil Proc. section 17(b)(6); Govt. Code section 26660.)
This is more limited than the existing law which includes
papers which must be served but are not orders from the
court, such as notice of motions made by opposing parties.
Therefore, the changes in the language appear to have the
unintended consequence of limiting what papers the sheriff
or jailer must accept or serve on the prisoners.
Penal Code section 4013 requires the sheriff or jailer to
include a note with the served papers noting the time of
service. The bill eliminates this requirement. This could
lead to significant problems because the limited time in
which a person must respond to papers in a judicial
proceeding is determined by the time of service. Given a
prisoner's limited access to legal resources, a time
difference of several days may have a large impact on his or
her ability to respond.
In addition it should be noted that statutes and rules
govern the time periods for serving documents in a judicial
proceeding and for responding to those documents. These
time periods are essential to a court's management of
disputes and ensure that the served party has an adequate
opportunity to respond. The bill does not indicate what
impact the two-day time period will have on the current
statutory time limits. This omission may well result in
disputes about whether service was completed within a
permissible period of time. Unfortunately, the sponsor has
declined the Committee's repeated invitation to address this
issue.
AB 496
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Finally, the amended language makes the sheriff/jailer
liable for damages to any aggrieved party rather than just
the prisoner. This may greatly expand the liability of the
sheriff/jailer.
REGISTERED SUPPORT / OPPOSITION :
Support
CAPPS
Opposition
California Association of Licensed Investigators
Wedick & Associates Private Investigators
Los Angeles County Criminal Defense Investigators Association,
Inc.
-------------------------------------------------------------
| All Valley Detectives (2) |
|-------------------------------------------------------------|
| Allan Special Investigations |
|-------------------------------------------------------------|
| Anderson Detective Agency |
|-------------------------------------------------------------|
| Angels Investigations |
|-------------------------------------------------------------|
| B & R Enquiries |
|-------------------------------------------------------------|
| B.P.J. Investigations |
|-------------------------------------------------------------|
| Backtrack Unlimited |
|-------------------------------------------------------------|
| BBR & Associates |
|-------------------------------------------------------------|
| Berger and Berger, Inc. |
|-------------------------------------------------------------|
| Bob Peters Investigations |
|-------------------------------------------------------------|
| Brady Investigations |
|-------------------------------------------------------------|
| Burke Executive Security & Investigations |
|-------------------------------------------------------------|
| C. Green & Associates, Inc. |
|-------------------------------------------------------------|
AB 496
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| C.E.I. & Claims Services |
|-------------------------------------------------------------|
| C.N.E.T. |
|-------------------------------------------------------------|
| Capital City Investigations |
|-------------------------------------------------------------|
| Clarick G. Brown Investigations |
|-------------------------------------------------------------|
| Coast to Coast Data Search |
|-------------------------------------------------------------|
| Cobalt Services |
|-------------------------------------------------------------|
| Commission 1 |
|-------------------------------------------------------------|
| CPIT, Inc. |
|-------------------------------------------------------------|
| Cromwell & Associates |
|-------------------------------------------------------------|
| D.W. Smothers and Associates |
|-------------------------------------------------------------|
| Eagle Glen Investigations |
|-------------------------------------------------------------|
| F.W. Huntington & Associates, Investigations |
|-------------------------------------------------------------|
| Factor One |
|-------------------------------------------------------------|
| First Legal Investigations |
|-------------------------------------------------------------|
| George Cramer Investigations |
|-------------------------------------------------------------|
| Grady Investigations |
|-------------------------------------------------------------|
| Holmes & Kimbrough Investigations, Inc. |
|-------------------------------------------------------------|
| Integrated Insurance Investigations |
|-------------------------------------------------------------|
| J.H.E. Investigations |
|-------------------------------------------------------------|
| Jean Kyles & Associates |
|-------------------------------------------------------------|
| Jim Harris Investigations |
|-------------------------------------------------------------|
| John White & Associates |
|-------------------------------------------------------------|
| Kakara & Associates |
AB 496
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|-------------------------------------------------------------|
| Klopper Investigations |
|-------------------------------------------------------------|
| Kraig Gehrke Investigative Services, Inc. |
|-------------------------------------------------------------|
| Krout and Schneider, Inc. |
|-------------------------------------------------------------|
| Krout and Schneider, Inc. (2) |
|-------------------------------------------------------------|
| Langhammer & Associates, Inc. |
|-------------------------------------------------------------|
| Legal Research Services Investigations, Inc. (2) |
|-------------------------------------------------------------|
| LTL & Associates |
|-------------------------------------------------------------|
| Martin Investigation Agency, Inc. |
|-------------------------------------------------------------|
| McGarraugh Company |
|-------------------------------------------------------------|
| Michael J. Martin Investigations |
|-------------------------------------------------------------|
| Monte L. Beers Investigative Services |
|-------------------------------------------------------------|
| Morgan Investigations Group, Inc. |
|-------------------------------------------------------------|
| Nelson & Nelson, Inc. |
|-------------------------------------------------------------|
| New Technologies Investigative Services |
|-------------------------------------------------------------|
| North Valley Investigations, Inc. |
|-------------------------------------------------------------|
| Orth Investigative Services |
|-------------------------------------------------------------|
| Palomar Investigative Group, Inc. |
|-------------------------------------------------------------|
| Parker & Associates |
|-------------------------------------------------------------|
| Penny & Penny |
|-------------------------------------------------------------|
| Perea and Associates |
|-------------------------------------------------------------|
| Perrin Investigative Service |
|-------------------------------------------------------------|
| PROBE |
|-------------------------------------------------------------|
AB 496
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| Probity Investigations |
|-------------------------------------------------------------|
| Resource Business Partners, Inc. |
|-------------------------------------------------------------|
| Richard L. Barnes & Associates |
|-------------------------------------------------------------|
| S.K. Nelson & Company |
|-------------------------------------------------------------|
| Security Oriented Systems, Inc., dba Crutchfield & |
|Associates |
|-------------------------------------------------------------|
| Sharff Investigations |
|-------------------------------------------------------------|
| Source Investigative Group, Inc. |
|-------------------------------------------------------------|
| Special Circumstances |
|-------------------------------------------------------------|
| Stewart Investigative Services, Inc. |
|-------------------------------------------------------------|
| Stuart Welch Investigations |
|-------------------------------------------------------------|
| SWAIM390 Investigations, Inc. |
|-------------------------------------------------------------|
| T. Davidson & Associates |
|-------------------------------------------------------------|
| Terheyden Investigations |
|-------------------------------------------------------------|
| The Davidsen Group |
|-------------------------------------------------------------|
| Thin Blue Line Investigations |
|-------------------------------------------------------------|
| Thomas C. Davis & Associates |
|-------------------------------------------------------------|
| Wallace Investigative Services |
|-------------------------------------------------------------|
| William Holmes Investigations |
|-------------------------------------------------------------|
| William J. Windle & Associates |
|-------------------------------------------------------------|
| Wynn Investigations, Inc. |
|-------------------------------------------------------------|
| |
|-------------------------------------------------------------|
| Individuals |
|(7) |
AB 496
Page 13
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Analysis Prepared by : Elizabeth Linton / JUD. / (916)
319-2334