BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1431 (Morrell)
          Version: February 19, 2016
          Hearing Date: April 5, 2016 
          Fiscal: No
          Urgency: No
          RD   


                                        SUBJECT
                                           
                           Service of summons or subpoena

                                      DESCRIPTION  

          This bill would allow investigators employed by a government  
          entity to gain access to gated communities for a reasonable  
          amount of time for the sole purpose of performing lawful service  
          of process or service of subpoena upon displaying a current  
          driver's license or other identification, and a badge or other  
          confirmation that the individual is acting in his or her  
          capacity as an investigator employed by a government entity. 

                                      BACKGROUND 

          In 1994, AB 3307 (Takasugi, Ch. 691, Stats. 1994), added Section  
          415.21 to the Code of Civil Procedure to allow for registered  
          process servers or representatives of a county's sheriff's or  
          marshal's office to gain access to a gated community in order to  
          perform service of process, as prescribed.  That section was  
          added in response to difficulties witnessed with serving process  
          in gated communities, and was later expanded to include access  
          to perform service of subpoenas.  
                                                              
          In 2012, recognizing that California law allows licensed private  
          investigators to perform service of process but does not provide  
          those investigators with the statutory authority under Section  
          415.21 to enter gated communities in the same fashion as  
          registered process servers or county sheriff's and marshal's  
          representatives in order to perform that service,  the  
          Legislature enacted AB 1720 (Torres, Ch. 113, Stats. 2012) to  








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          allow licensed private investigators to also enter a gated  
          community for a reasonable amount of time and for the sole  
          purpose of performing lawful service of process or service of  
          subpoena, upon showing specified identification.  That 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 under those limited  
          conditions.

          This bill would now allow investigators employed by a government  
          entity to gain access to gated communities for a reasonable  
          amount of time for the sole purpose of performing lawful service  
          of process or service of subpoena upon providing proper  
          identification, as specified under existing law. 

                                CHANGES TO EXISTING LAW
           
           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 10 times in a year must file and maintain a  
          certificate of registration as a process server in the  
          appropriate county.  Existing law 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  







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          time for the sole purpose of performing lawful service of  
          process or service of a subpoena 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 add to the above, authority for an investigator  
          employed by a government entity to gain access to a gated  
          community for a reasonable period of time, for the sole purpose  
          of performing lawful service of process or service of subpoena  
          upon displaying both (1) a current driver's license or other  
          identification, and (2) either a badge or other confirmation  
          that the individual is acting in his or her capacity as an  
          investigator employed by a government entity. 
           


                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

            Private guard staff of gated communities can and do deny  
            entrance to process servers who do not have a badge  
            identifying that person as a peace officer, or official  
            identification as a registered process server or private  
            investigator.

            Although they are employees of public agencies engaged in  
            investigative work and also carry badges, public defender  
            investigators are not peace officers and often are not  
            registered process servers. Even though district attorney  
            investigators may be peace officers, they do not fall within  
            the three categories found in existing law. For these reasons,  
            many of these investigators have been denied access to gated  
            communities, even though they are authorized by statute [ . .  
            . ] to serve process generally. This requires the agencies in  
            question to either impose upon the local sheriff or marshal's  
            office, or spend taxpayer dollars to hire a registered process  







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            server or private investigator.

            SB 1431 would add investigators employed by public agencies to  
            the list of persons permitted access to gated communities  
            under [Code of Civil Procedure Section] 415.21, subject to  
            that section's requirements and limitations.

          2.   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 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.  (Code Civ. Proc. Sec.  
          415.21.)  This bill would add authority for investigators  
          employed by a government entity to gain access to such gated  
          communities upon displaying a current driver's license or other  
          identification and a badge or other confirmation that he or she  
          is acting within his or her capacity as an investigator employed  
          by a government entity.  

          Gated communities guarded by security exist for the safety and  
          privacy of the individuals residing in the community.  While a  
          sheriff or marshal can be easily identifiable, the same does not  
          necessarily apply to process servers or private investigators.   
          Nonetheless, the Legislature has approved legislation in recent  
          years to provide very limited authorization for these  
          individuals to gain reasonable access to gated communities for  
          the sole purposes of serving process or subpoenas, recognizing  
          that these individuals are otherwise registered or licensed with  
          the State of California and can provide documentation to that  
          effect as well.  By requiring that any such person present both  
          identification and other evidence of current registration as a  
          process server or of licensure as a private investigator and  
          expressly limiting their access to gated communities for a  
          reasonable amount of time for the sole purpose of serving  
          process, existing law thus operates to prevent a person seeking  
          access to the private community for potentially nefarious  







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          purposes from gaining access to the community under the false  
          pretense that he or she is a licensed private investigator or  
          service processor there to serve process or subpoenas on an  
          individual residing in the community.

          Notably, while this bill expands the ability of additional  
          individuals to gain access to such private communities, it  
          retains existing protections by allowing access only where the  
          investigator displays his or her current driver's license or  
          other identification, and a badge or other confirmation that he  
          or she is acting in the capacity of an investigator employed by  
          a government entity.  Even then, access would be further limited  
          to a reasonable amount of time and for the sole purpose of  
          performing lawful service of process or service of subpoena.    
          However, the authorization provided by this bill for individuals  
          who are able to present a badge or other confirmation that they  
          are acting in their capacity as "an investigator employed by a  
          government entity" might nonetheless appear vague compared to  
          the authorization for representatives of a county sheriff or  
          marshal, or registered process servers or licensed private  
          investigators under specified law.  

          According to the sponsor of this bill, the Conference of  
          California Bar Associations (CCBA), the investigators being  
          turned away by private guard staff at gated communities are  
          employees of district attorneys and public defenders and carry  
          badges and credentials to that effect.  Specifically, district  
          attorney investigators are sworn peace officers under Penal Code  
          Section 830.1 and are issued badges and law enforcement  
          credentials, and public defender investigators (who are at times  
          also private investigators or former law enforcement) receive  
          badges from counties as they are county employees.  CCBA writes  
          that because these investigators are denied entrance, "the  
          agencies in question [must] either impose upon the local sheriff  
          or marshal's office to serve the process or subpoena, or to  
          spend taxpayer dollars to hire a registered process server or  
          private investigator to do so."

          As such, to better ensure the privacy of individuals residing in  
          gated communities and to improve the ability of private security  
          guards to identify who to allow into the community for these  
          purposes, the author offers the following amendment to narrow  
          the bill to individuals acting in their capacity as an  
          investigator employed by an office of a district attorney or  
          public defender.  







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             Author's amendment
           
            On page 2, line 3, strike "a government entity" and insert "an  
            office of a district attorney or public defender"


           Support  :  California District Attorneys Association

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  Conference of California Bar Associations

          Related Pending Legislation  :  None Known 

           Prior Legislation  :

          AB 1720 (Torres, Ch. 113, Stats. 2012) allowed 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 and 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.

          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  
          otherwise specified, to perform service of subpoenas.

          AB 3307 (Takasugi, Ch. 691, Stats. 1994) See Background. 

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