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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