BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2256 (Garcia)
As Amended May 29, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Procedure: Service and Fees: Sheriffs
DESCRIPTION
This bill would adjust and add to the fees set under existing
law for service of process of various documents by sheriffs.
This bill would also revise existing requirements for gaining
access to gated communities for the purpose of service of
process.
BACKGROUND
The sheriff of a county is required under existing law to
perform certain duties in addition to law enforcement, such as
service of process. Current law allows the sheriff to charge
and collect set fees to offset their costs. That being said,
indigent litigants, proceeding in forma pauperis, pay no fee for
these services. The collected fees cover only a portion of the
sheriffs' costs for performing these services, and the county
subsidizes the remaining cost. Periodically, the statutes
governing the fees that a sheriff may charge are revised to
reflect increases in costs to the sheriff. Such fees were last
increased in 2010, with the passage of AB 680 (Hall, Ch. 4,
Stats. 2010).
Separately, with respect to service of process within gated
communities that are staffed by a guard or other security
personnel assigned to control access to the community, existing
law allows registered process servers and representatives of a
county's sheriff's or marshal's office to gain access to the
gated community in order to perform service of process, upon
(more)
AB 2256 (Garcia)
Page 2 of ?
meeting certain requirements. (AB 3307 (Takasugi, Ch. 691,
Stats. 1994).) That provision was added in response to
difficulties witnessed with serving process in gated
communities, and was subsequently amended in 2012 to also allow
licensed private investigators to enter a gated community for a
reasonable amount of time for the sole purpose of performing
lawful service of process or service of subpoena. (AB 1720
(Torres, Ch. 113, Stats. 2012); the bill also clarified that
registered process servers and county sheriff's and marshal's
representatives who enter to perform service of process or
subpoena are also entering for that sole purpose.)
This bill would revise various fees to reflect increased costs,
and would also add a new fee to be charged for the service of
protective orders on persons in custody. The bill would also
remove the requirement that registered process servers, licensed
private investigators and sheriff representatives enter gated
communities solely for the purpose of service and upon certain
identification.
CHANGES TO EXISTING LAW
1. Existing law provides that when an action is against a
sheriff, all process and orders may be served by any person, a
citizen of the United States over the age of 18 years, in the
manner provided in the Code of Civil Procedure. (Code Civ.
Proc. Sec. 262.7.)
This bill would instead allow all process and orders in an
action against a sheriff to be served by any person in the
manner provided in the Code of Civil Procedure.
2. Existing law permits a plaintiff to have the clerk of the
court issue a summons for any defendant, as specified. (Code
Civ. Proc. Sec. 412.10.) Existing law provides that a copy of
the summons may then be served on the defendant, as specified,
including by personal delivery of a copy of the summons and
complaint to the person to be served. (Code Civ. Proc. Sec.
415.10 et seq.)
Existing law requires the registration of and governs
specified persons who qualify as process servers, as
specified. (Bus. & Prof. Code Sec. 22350 et seq.) Existing
law provides that a person who receives or expects specific
compensation for serving process more than ten times in a year
must file and maintain a certificate of registration as a
process server in the appropriate county. Existing law
AB 2256 (Garcia)
Page 3 of ?
provides for specified exemptions from this requirement to
register as a process server, including, among others, private
investigators. (Bus. & Prof. Code Sec. 22350.)
Existing law , the Private Investigator Act, governs the
licensing, registration, and regulation of private
investigators, as specified. (Bus. & Prof. Code Sec. 7512 et
seq.) Existing law provides that a private investigator
within the meaning of this chapter is a person, subject to
certain exceptions, who, for any consideration whatsoever,
engages in business or accepts employment to furnish or agrees
to furnish any person to protect persons, as specified, or
engages in business or accepts employment to furnish, or
agrees to make, or makes, any investigation for the purpose of
obtaining certain information. (Bus. & Prof. Code Sec. 7521.)
Existing law , with respect to gated communities staffed at the
time service of process is attempted by a guard or other
security personnel assigned to control access to the
community, provides that notwithstanding any other law, any
person shall be granted access to a gated community for a
reasonable period of time for the sole purpose of performing
lawful service of process or service of a subpoena, upon
identifying to the guard the person or persons to be served,
and upon displaying a current driver's license or other
identification, and one of the following:
(1) a badge or other confirmation that the individual is
acting in his or her capacity as a representative of a county
sheriff or marshal; or
(2) evidence of current registration as a process server or of
licensure as a private investigator under the Business and
Professions Code. (Code Civ. Proc. Sec. 415.21.)
This bill would delete the above provisions and instead
provide that notwithstanding any other law, a county sheriff,
marshal, registered process server, or licensed private
investigator 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.
3. Existing law permits the sheriff to notify the party
protected by a protective order by telephone or email when
service of the protective order is made, as specified. (Gov.
Code Sec. 6103.3.) Existing law applies that provision only
to specified orders or injunctions of the Code of Civil
Procedure, the Family Code, and of the Welfare and
AB 2256 (Garcia)
Page 4 of ?
Institutions Code, as specified. (Gov. Code Sec. 6103.3(d).)
This bill would also allow the sheriff to provide notification
by publishing notice of service of process on the sheriff's
Internet Web site. This bill would also delete the language
expressly limiting this section to specified orders and
injunctions.
4. Existing law authorizes certain fees for service of various
documents by sheriff's offices. (Gov. Code Secs. 26720.9,
26721, 26721.2, 26722, 26723, 26725.1, 26726, 26727, 26728.1,
26729, 26730, 26731, 26733.5, 26736, 26738, 26740, 26741,
26744.5, 26746, 26746.1, 26750.)
This bill would adjust those fees as follows:
Increase from $35 to $40 the fee for:
o serving or executing any process or notice, except
as otherwise provided;
o service of a summons, complaint, and prejudgment
claim of right to possession, as specified, for all
occupants not named in the summons;
o serving, executing, or processing a writ of
attachment, writ of execution, writ of sale, or order on
real estate, as to the initial service or posting of a
continuous unbroken parcel or tract, and the fee for
serving a record owner other than the defendant;
o preparing and posting the initial notice of personal
property sale under a writ of attachment, execution, or
sale or order of court;
o making a levy on personal property already in
possession of the officer who is holding it under
attachment in the same action;
o executing and delivering any other instrument;
o subpoenaing a witness, including a copy of the
subpoena and any affidavit required to be served
therewith;
o the service of the summons, the complaint for which
the summons is issued, and all other documents or notices
required to be served with the summons and complaint, in
any action commenced in the superior court;
o maintaining custody of property under levy by the
use of a keeper, for each day custody is maintained after
the first day;
o cancellation of the service or execution of any
process, other than a summons;
o making a not-found return on an affidavit and order,
AB 2256 (Garcia)
Page 5 of ?
order for appearance, subpoena, writ of attachment, writ
of execution, writ of possession, order for delivery of
personal property, or other process or notice required to
be served, certifying that the person or property cannot
be found at the address specified; and
o receiving and processing a warrant for failure to
appear pursuant to a subpoena or failure to appear
pursuant to a court order, as an alternative to issuing a
warrant for contempt, as specified.
Increase from $85 to $100 the fee for:
o serving, executing, or processing any writ or order
where the levying officer is required to take immediate
possession of the property levied upon; and
o arresting a person pursuant to a warrant for failure
to appear pursuant to a subpoena or failure to appear
pursuant to a court order, as an alternative to issuing a
warrant for contempt, as specified.
Increase from $125 to $135 the fee for opening a
safe-deposit box pursuant to specified provisions relating
to pre-judgment attachment of safe-deposit boxes and the
levying of property in safe-deposit boxes in financial
institutions.
Increase from $10 to $20, each, the fee for serving or
posting any additionally required notices or orders on
other parcels.
Increase from $280 to $300 the cap on how much any one
keeper can receive in any 24-hour period employed for
keeping and caring for property under a writ of attachment,
execution, possession.
Increase from $50 to $60 the fee for:
o a keeper when a levying officer prepares a not-found
return, as specified; and
o removing an occupant or occupants from the premises
and putting a person in possession of the premises.
Increase from 50 cents per page to one dollar per page
the fee for a copy of any writ, process, paper, order, or
notice actually made when required or demanded, except as
otherwise specified under existing law.
Increase from $10 to $15 the fee for:
o preparing and posting each additionally required
notice of personal property sales;
o furnishing a notice of publication;
o execution and delivery of a deed or certificate of
redemption; and
o executing and delivering a certificate or deed of
sale.
AB 2256 (Garcia)
Page 6 of ?
Increase from $85 to $90 the fee for conducting or
postponing the sale of real or personal property as
required by law or the litigant.
Increase from $15 to $18 the amount of any fee collected
by the sheriff's civil division or marshal, under specified
provisions of law, which must be deposited in a special
fund in the county treasury.
Increase from $75 to $85 the fee for:
o serving a writ of possession of real property on an
occupant or the occupants or for positing and serving a
copy on the judgment debtor; and
o processing a warrant for failure to appear pursuant
to a subpoena or failure to appear pursuant to a court
order, as an alternative to issuing a warrant for
contempt, as specified, if unable to find the person at
the address specified using due diligence.
Increase from $17 to $20 the fee to be assessed by the
sheriff or marshal for certification of correction on each
citation that requires inspection for proof of correction
of any violation pursuant to the Vehicle Code.
Increase from $30 to $35 the fee for serving an earnings
withholding order under the Wage Garnishment Law,
including, but not limited to, costs of postage or
traveling, and for performing all other duties of the
levying officer as specified.
This bill would, for any action commenced in a superior court
for which service of summons is attempted, add a $40 fee for
cancellation for the service of a summons prior to its
completion, as well as a $40 fee for making a not-found return
on a summons certifying that the person cannot be found at the
address specified.
5. Existing law , in relevant part, provides that no fee shall
be charged for serving an emergency protective order,
protective order, or restraining order pursuant to the
Domestic Violence Prevention Act on a respondent who is in
custody. (Gov. Code Sec. 26721.)
This bill would delete that prohibition and thereby allow for
a $40 fee to be charged for service of the above orders.
This bill would make other clarifying or non-substantive
changes and would delete obsolete dates.
COMMENT
AB 2256 (Garcia)
Page 7 of ?
1. Stated need for the bill
According to the author:
Current civil fees do not cover costs forcing Sheriff's to
reduce staff and resources dedicated to the service of civil
process. Also, current law does not require adequate
information for the [service of] civil warrants. Additionally,
the current law is not clear on the authority for sheriffs and
others to service process in a gated community.
The bill does a number of things. First it increases a number
of fees. Second the bill would authorize sheriffs to gain
access to gated communities. Third, it would codify the
serving of business organizations. Fourth it would allow for a
more modern internet notification of when a protective order
has been served and lastly it would clean up the sections in
law pertaining to the service of civil warrants for contempt
and failure to appear.
2. Fee increases
This bill seeks to increase various statutorily prescribed fees
authorized for the performance of service of various forms of
process by sheriffs or marshals. The author argues that the fees
charged by sheriff offices under California's Code of Civil
Procedure for the service of various forms of process, "were
designed to cover the actual costs for sheriff's offices to
perform these duties. Currently however the fees do not come
close to covering actual costs. In Los Angeles County for
example the revenue brought in by civil fees was $14,808,423.00
and the actual costs were $29,486,423.00. In Fresno County due
to budget cuts and lack of adequate funding the Sheriff's office
there limited the time the offices can open to three days a week
for only [four] hours per day. Although this bill proposes fee
increases, they are modest and do not cover the full costs, but
they do close the gap." The Los Angeles County Sheriff's
Department, a co-sponsor of this bill, argues the modest fee
increases would also help them "rely less on taxpayer money to
conduct these services and have the user cover more of the
cost."
The proposed fee increases would range from 50 cents to $20,
with the majority of the increases ranging between $5 and $10,
for the various services provided by county sheriffs and
AB 2256 (Garcia)
Page 8 of ?
marshals. As noted in the Background, many of the fees proposed
by this bill (such as the fees relating to service of specified
warrants or keeper fees) were last proposed to be raised in 2010
with the passage of AB 680 (Hall, Ch. 4, Stats. 2010; though the
fees were increased with delayed enactments of January 1, 2011)
and others have not been raised since prior to that date (such
as for earnings withholdings orders). Notably, at the time that
AB 680 was introduced in 2009, many of these rates were raised
to the current $35 rate. The U.S. Department of Labor's CPI
(consumer price index) inflation calculator states that $35 in
2010 is the equivalent of $38.05 today. This bill proposes
raising those fees in particular to $40. This increase, while
slightly above the inflation rate for the previous four years,
does not appear extraordinary in light of the actual costs
incurred.
Ultimately, raising sheriffs' fees for service of process always
carries risks of restricting access to the courts. Any fee
increase must balance the need for increased funds against this
risk of foreclosing court resources. It should be noted that
nothing in this bill would affect the current ability of a
litigant to seek a waiver of the above sheriffs' and marshals'
fees if he or she cannot afford to pay those fees, though the
proposed fee increases could feasibly increase the number of
individuals seeking those waivers. (See Gov. Code Secs.
26720.5, 68631; Cal. Rule of Court 3.55.)
3. Additional fee to be charged for service of process on
individuals already in custody
California law currently prohibits any fee from being charged
for serving an emergency protective order, protective order, or
restraining order pursuant to the Domestic Violence Protection
Act on a respondent who is in custody. This bill would delete
that prohibition, thereby requiring victims to pay a $40 fee for
the service of those orders.
To address concerns about the imposition of that fee, the
following amendment would strike the proposed changes to Section
26721 of the Government Code from the bill.
Suggested Amendment :
On page 12, strike lines 28-39, inclusive
4. Notification of parties protected by a protective order
AB 2256 (Garcia)
Page 9 of ?
Existing law, with respect to certain orders or injunctions of
the Code of Civil Procedure, Family Code, and the Welfare and
Institutions Codes, allows the sheriff to notify a party
protected by a protective order by telephone or email when
service of the protective order is made, as specified. This
bill now seeks to allow the sheriff to provide notification by
publishing notice of the service of process on the sheriff's
Internet Web site. The California State Sheriffs' Association,
co-sponsor of this bill, argues that this is just one more, and
arguably more efficient, means of notifying the protected party
of when a protective order has been served:
Currently, the sheriff may notify a protected party by
telephone or e-mail when a protective order is served.
However, some protected parties may not have a personal
telephone or e-mail account. Further, it is not practicable to
expect the sheriff to make multiple attempts to telephonically
contact a petitioner before the end of shift. This bill
offers a more accessible and comprehensive means to
communicate the status on the service of a protective order to
a protected person. For example, a protected party may
ascertain the service status of a protective order by simply
entering the court case number [ . . . ] and party's name [ .
. . ] in the Case Inquiry on LASD's website,
http:/civil.lasd.org. Note that the addresses of the parties
are intentionally not displayed. The service status of the
protective order is updated before the end of the serving
deputy's shift. The petitioner has only to seek [I]nternet,
e.g., go to or call a police station, go to a library, ask a
friend, etc. [if they do not have access to the Internet at
home].
5. Gated community access
Where there is a gated community staffed by a guard or other
security personnel assigned to control access to the community
at the time service of process is attempted, existing law
requires a person to be granted access to the gated community
for a reasonable period of time for the sole purpose of
performing lawful service of process or service of a subpoena,
upon identifying to the guard the person or persons to be
served, and upon displaying a current driver's license or other
identification, and one of the following: (1) a badge or other
confirmation that the individual is acting in his or her
capacity as a representative of a county sheriff or marshal; or
AB 2256 (Garcia)
Page 10 of ?
(2) evidence of current registration as a process server or of
licensure as a private investigator. (Code Civ. Proc. Sec.
415.21.)
This bill would delete the requirement that the person seeking
access to the gated community provide identification or other
evidence of licensure or registration, and would not require
that access to be "solely" for the purpose of performing lawful
service of process or service of a subpoena. Staff notes that
gated communities guarded by security exist for the safety and
privacy of the individuals residing in the community. While a
sheriff or marshal could theoretically be easily identifiable,
the same does not necessarily apply to registered process
servers or licensed private investigators. In other words, a
person purporting to be a licensed private investigator could
enter the community for the purported purpose of performing
service of process and not have to show any sort of evidence of
their current registration or licensure as a process server or
private investigator. Moreover, their entrance would no longer
be for the "sole" purpose of performing lawful service,
suggesting that the Legislature no longer intended that
limitation to be placed to have valid access to the community.
The co-sponsor of this bill, the California State Sheriffs'
Association, comments that "[t]his bill only applies to a gated
community staffed by a guard." In other words, presumably, the
same argument regarding privacy and security could be made when
a sheriff enters for service in an unguarded gated community.
Moreover, the sponsor explains that the problem that has arisen
as a result of this section is that the sheriff must "disclose
the identity of the 'person or persons to be served' to the
guard. Oftentimes, the guard is required to immediately notify
the occupant upon granting entry which, in turn, enables the
person to not answer the door. Also, conditional access to a
gated community by the sheriff conflicts with the jurisdictional
authority of the sheriff to access any public area in the
performance of his duties. This bill removes any potential
conflict between a guard and the sheriff or registered process
server over disclosing the identity of the person to be served."
To address the specific issue identified by the California State
Sheriffs' Association and yet retain the existing identification
requirements and requirements that process servers and private
investigators show evidence of their registration or licensure,
the following amendment is suggested:
AB 2256 (Garcia)
Page 11 of ?
Suggested Amendment :
On page 3, lines 6-15, strike Section 2 from the bill and
insert: Section 415.21 of the Code of Civil Procedure shall be
amended to read:
(a) Notwithstanding any other law, any person shall be granted
access to a gated community for a reasonable period of time
for the sole purpose of performing lawful service of process
or service of a subpoena, upon identifying to the guard the
person or persons to be served, and upon displaying a current
driver's license or other identification, and one of the
following:
(1) A badge or other confirmation that the individual is
acting in his or her capacity as a representative of a county
sheriff or marshal.
(2) Evidence of current registration as a process server
pursuant to Chapter 16 (commencing with Section 22350) of
Division 8 of the Business and Professions Code or of
licensure as a private investigator pursuant to Chapter 11.3
(commencing with Section 7512) of Division 3 of the Business
and Professions Code.
(b) This section 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.
Support : California Apartment Association
Opposition : None Known
HISTORY
Source : California State Sheriffs' Association; Los Angeles
County Sheriff's Department
Related Pending Legislation : None Known
Prior Legislation :
AB 680 (Hall, Ch. 4, Stats. 2010) See Background.
AB 1742 (Committee on Judiciary, Ch. 706, Stats. 2005), allowed
registered process servers and sheriff's and marshal's
representatives to have access to gated communities, as
AB 2256 (Garcia)
Page 12 of ?
otherwise specified, to perform service of subpoenas.
SB 432 (Alquist, Ch. 365, Stats. 2006) increased from $30 to $35
sheriffs' fees for serving a summons for an action commenced in
superior court and related documents and notices, and,
commencing January 1, 2008, increased from $25 to $30 the fee
for serving an earnings withholding order.
AB 1150 (La Suer, Ch. 474, Stats. 2005) enacted a series of
requirements to govern the issuance and execution of civil
arrest warrants for failure to appear pursuant to a subpoena or
a court order, and established that the sheriff may obtain
specified fees for the processing and execution of a warrant.
AB 496 (Aghazarian, Ch. 300, Stats. 2005) See Background.
AB 2137 (Steinberg, Ch. 327, Stats. 2004) increased various law
enforcement fees.
AB 394 (Montanez, Ch. 888, Stats. 2003) adjusted and designated
the fees charged for certain civil process functions provided by
sheriffs.
AB 1768 (Steinberg, Ch. 629, Stats. 2000) revised and increased
prescribed fees charged for serving, executing and processing
required court notes, writs, orders, and other services provided
by sheriffs and marshals.
AB 3307 (Takasugi, Ch. 691, Stats. 1994) See Background.
Prior Vote :
Assembly Floor (Ayes 52, Noes 11)
Assembly Judiciary Committee (Ayes 7, Noes 1)
**************