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 SB 1431 (Morrell) Page 2 of ? 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 SB 1431 (Morrell) Page 3 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 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 SB 1431 (Morrell) Page 4 of ? 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 SB 1431 (Morrell) Page 5 of ? 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. SB 1431 (Morrell) Page 6 of ? 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. **************