BILL ANALYSIS Ó
AB 1720
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Date of Hearing: March 20, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1720 (Torres) - As Introduced: February 16, 2012
PROPOSED CONSENT (As Proposed to Be Amended)
SUBJECT : SERVICE OF PROCESS: PRIVATE INVESTIGATORS
KEY ISSUE : SHOULD A GUARD AT A GATED COMMUNITY BE REQUIRED TO
GRANT ACCESS TO A LICENSED PRIVATE INVESTIGATOR, FOR A
REASONABLE TIME AND UPON PROPER IDENTIFICATION, FOR THE SOLE
PURPOSE OF PERFORMING LAWFUL SERVICE OF PROCESS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This noncontroversial bill, sponsored by the California
Association of Licensed Investigators (CALI), seeks to expressly
require that licensed private investigators be granted access to
a gated community for the purpose of performing lawful service
of process or service of a subpoena-access which existing law
currently grants to registered process servers but not to
private investigators. This requirement of access would only
apply to a gated community that is staffed by a guard or other
security personnel at the time service of process is attempted,
and only upon presentation of identification and a valid PI
license and only for a reasonable time. As proposed to be
amended, this bill would clarify that access is granted for the
"sole purpose" of performing service of process, and also would
clarify Legislative intent not to upset the holding of Bein vs.
Brechtel-Jochim Group , a case which authorizes substituted
service of the gate guard if reasonable diligent efforts to
achieve physical service have failed. There is no known
opposition to this bill.
SUMMARY : Requires a licensed private investigator to be granted
access to a gated community for the purpose of performing
service of process. Specifically, this bill requires a person
licensed as a private investigator to be granted access to a
gated community for a reasonable period of time for the purpose
of performing lawful service of process or service of a
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subpoena, upon identifying to the guard the person to be served
and upon displaying a current driver's license or other form of
identification and evidence of his or her licensure as a private
investigator.
EXISTING LAW :
1)Requires that a person shall be granted access to a gated
community for a reasonable period of time for the purpose of
performing lawful service of process or service of a subpoena,
upon identifying to the guard the person to be served and upon
displaying a current driver's license or other identification,
and one of the following:
a) A badge or other confirmation that the individual is
acting in his or her capacity as a representative of a
county sheriff or marshal.
b) Evidence of current registration as a process server
pursuant to Chapter 16 of Division 8 of the Business and
Professions Code. (Code of Civil Procedure Section
415.21(a).)
2)Provides that this requirement shall only apply to a gated
community that is staffed at the time service of process is
attempted by a guard or other security personnel assigned to
control access to the community. (Code of Civil Procedure
Section 415.21(b).)
3)Provides that if a copy of the summons and complaint cannot
with reasonable diligence be personally delivered to the
person to be served, substituted service may be made, as
specified, upon a competent member of the household or a
person apparently in charge at the location who is at least 18
years of age and who shall be informed of the contents
thereof, and by thereafter mailing a copy of the summons and
of the complaint by first-class mail, to the person to be
served at the place where a copy of the summons and complaint
were left. (Code of Civil Procedure Section 415.20(b).)
4)Authorizes service of summons and complaint upon a guard at a
residential gated community for the purpose of effectuating
substituted service pursuant to Code of Civil Procedure
Section 415.20. (Bein v. Brechtel-Jochim Group, Inc. (1992),
6 Cal.App.4th 1387.)
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COMMENTS : This noncontroversial bill, sponsored by the
California Association of Licensed Investigators (CALI), seeks
to expressly require that licensed private investigators (PI's)
be granted access to a gated community for the purpose of
performing lawful service of process or service of a
subpoena-access which existing law currently grants to
registered process servers but not to private investigators.
This requirement of access would only apply to a gated community
that is staffed by a guard or other security personnel at the
time service of process is attempted, and only upon presentation
of identification and a valid PI license and only for a
reasonable time for the sole purpose of performing service of
process.
Need for the Bill : According to the author, "While private
investigators are exempt from registering as process servers and
are allowed to serve subpoenas and service of process, unlike
process servers and sheriffs, they are not specifically
authorized to enter gated communities. (As a result) many PIs
have been turned away at gated communities by diligent guards
when attempting to perform a service of process or serve a
subpoena. This bill remedies this inconsistency in state law by
expressly authorizing a PI to access a gated community when
performing service of process . . . (and would) help ensure that
all individuals are duly served process whether they live in or
outside of a gated community."
In addition, the Committee has received written accounts from a
number of individual private investigators testifying that they
have been unable to serve legal process on many occasions after
being denied access to gated communities by guards working
there, even after showing their credentials and the documents to
be served.
Background on Private Investigators. Private investigators are
licensed by the Bureau of Security and Investigative Services
(BSIS), within the Department of Consumer Affairs, pursuant to
Chapter 11.3 of Division 3 of the Business and Professions Code
(commencing with Section 7512.) According to BSIS, a private
investigator is an individual who: (1) investigates crimes, (2)
investigates the identity, business, occupation, character,
etc., of a person, (3) investigates the location of lost or
stolen property, (4) investigates the cause of fires, losses,
accidents, damage or injury, or (5) secures evidence for use in
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court. Private investigators may protect persons only if such
services are incidental to an investigation, but they may not
protect property.
Existing law exempts licensed private investigators and their
employees from having to file and maintain with the county a
verified certificate of registration as a process server.
(Business & Professions Code Section 22350(b).) According to
CALI, while registered process servers typically serve
financial-related documents such as wage garnishments and bank
levies, PI's serve non-financial types of documents, such as
restraining orders, deposition subpoenas, and papers related to
family law matters such as paternity or child support. Because
of their investigative skills, private investigators are often
hired to serve process when the party serving process doesn't
know where the person to be served lives or works and needs help
establishing an address for the person to be served.
Access to the gated community required by this bill is narrow in
scope and specific to the purpose of serving legal process .
Existing CCP Section 415.21, which applies only to registered
process servers, grants access to gated communities upon three
conditions: (1) the access is only for a reasonable time; (2)
access is for the purpose of performing lawful service or
service of a subpoena; and (3) the person must identify to the
guard the person to be served, and display identification and
appropriate evidence of licensure. This bill simply seeks to
apply these same conditions in extending access to PI's.
Because presentation of a private investigator's license and
personal identification are required to gain access, employees
or agents of private investigators continue to be excluded from
access to the gated community under this bill.
Furthermore, in order to clarify that private investigators are
granted access to a gated community for the sole purpose of
serving legal process, and not to conduct investigative work or
for any other purpose, the author proposes to amend the bill as
follows:
On page 2, line 1, before "purpose" insert "sole"
As proposed to be amended, this bill clarifies no Legislative
intent to modify the rule of substituted service established by
Bein v. Brechtel-Jochim Group (1992) . In Bein v.
Brechtel-Jochim Group, Inc. (1992) 6 Cal. App. 4th 1387, the
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Court of Appeal (4th District) held that service of legal
process upon a guard at the entrance of a gated community is
sufficient to meet the requirements for substituted service
pursuant to Code of Civil Procedure Section 415.20. In that
case, the Court wrote that while "litigants have the right to
choose their abodes, they do not have the right to control who
may sue or serve them by denying them physical access."
(6 Cal.App. 4th at 1393.) The Court concluded that after good
faith attempts at physical service on the resident of the gated
community had been unsuccessful, it was appropriate to allow
substituted service on the residential gate guard under its
interpretation of Section 415.20.
If this bill is enacted, then a licensed private investigator
may, pursuant to Bein, make substituted service on the guard of
the gated community if he or she has already tried without
success to personally serve legal process with reasonable
diligence. Although this bill does not propose to amend Section
415.20, the author has elected to include the following
amendment in order to clarify that this bill in no way is
intended to upset or modify the holding of that important case:
On page 2, after line 17, insert:
"SEC.2. In enacting Section 1 of this act, it is not the
intent of the Legislature to abrogate or modify the holding
of the court in Bein v. Brechtel-Jochim Group, Inc. (1992),
6 Cal. App. 4th 1387, relating to service upon a guard in a
gated community."
ARGUMENTS IN SUPPORT : According to several private
investigators who provided written comments with the Committee,
this bill may have the additional benefit of reducing costs
associated with inefficiencies of repeated failed service. For
example, one private investigator writes: "In one matter I was
appointed by the court and the county was paying my bill. It
took me three tries to get in and serve a lawful subpoena, and
that of course was added expense for the county for what should
have otherwise been a routine matter." (Comment of Jim Zimmer.)
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Licensed Investigators (sponsor)
AB 1720
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Executive Council of Homeowners (ECHO)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334