BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1431


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          Date of Hearing:  June 8, 2016 


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          1431 (Morrell) - As Amended April 12, 2016


                    PROPOSED CONSENT (As Proposed to be Amended)


          SENATE VOTE:  38-0


          SUBJECT:  GATED COMMUNITIES: SERVICE OF SUMMONS OR SUBPOENA


          KEY ISSUE:  SHOULD INVESTIGATORS HIRED BY CERTAIN GOVERNMENTAL  
          ENTITIES, INCLUDING THE ATTORNEY GENERAL, A COUNTY COUNSEl, A  
          CITY ATTORNEY, A DISTRICT ATTORNEY, AND A PUBLIC DEFENDER be  
          AUTHORIZED TO EFFECTUATE SERVICE OR SERVE SUBPOENAS IN GATED  
          COMMUNITIES?


                                      SYNOPSIS


          An increasing number of Californians live in gated communities -  
          many of which are staffed by guards at the main entrances.   
          Although a guard's presence is intended to deter unauthorized  
          people from accessing the gated community, the guard also makes  
          it potentially difficult for litigants to effectuate service or  
          serve subpoenas on persons who live within the community.  In  
          fact, this Committee has learned about instances where guards  








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          have turned away legitimate and registered process servers.  To  
          resolve difficulties arising from parties unable to effectuate  
          service in gated communities, the Legislature has authorized  
          certain individuals to gain access to a gated community,  
          specifying that access is for a reasonable amount of time and  
          for the sole purpose of performing lawful service of process or  
          service of a subpoena.  Those individuals must also provide any  
          guard at the gated community with proof of their identity and  
          their status before entering the community.  Currently, the  
          individuals who are authorized are limited to a county sheriff  
          or marshal, a registered process server, and a private  
          investigator.  


          Consistent with prior measures, this non-controversial bill  
          simply expands that list of individuals who are allowed to  
          effectuate service and serve subpoenas in gated communities to  
          include investigators who are employed by certain governmental  
          entities (e.g., the attorney general, a county counsel, a city  
          attorney, a district attorney, or a public defender).  This bill  
          is sponsored by the Conference of California Bar Associations  
          and has no opposition. 


          SUMMARY:  Expands the list of individuals who are allowed to  
          effectuate service or serve subpoenas in a gated community.   
          Specifically, this bill allows an investigator employed by an  
          office of the attorney general, a county counsel, a city  
          attorney, a district attorney, or a public defender to access a  
          gated community for a reasonable period of time for the sole  
          purpose of performing lawful service of process or service of a  
          subpoena, as provided.


          EXISTING LAW:   


          1)Requires that a person be granted access to a gated community  
            for a reasonable period of time for the purpose of performing  








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            lawful service of process or service of a subpoena, upon the  
            display of that person's current driver's license or other  
            specified form of identification and one of the following to a  
            guard or other security personnel assigned to control access  
            to the gated community: 


             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; or 


             b)   Evidence of current registration as a process server or  
               of licensure as a private investigator as provided.  (Code  
               of Civil Procedure Section 415.21.)


          1)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.)
          2)Requires the registration of and governs specified persons who  
            qualify as process servers.  (Business and Professions Code  
            Section 22350 et seq.)  


          3)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, unless otherwise  
            provided.  (Ibid.)


          4)Establishes the Private Investigator Act, which governs the  
            licensing, registration, and regulation of private  
            investigators.  (Business and Professions Code Section 7512 et  
            seq.) 









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          5)Provides that subpoenas to compel the attendance of a witness  
            in a criminal proceeding may be signed and issued by any of  
            the following: a district attorney or his or her investigator;  
            a public defender or his or her investigator.  (Penal Code  
            Section 1326.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  An increasing number of Californians live in gated  
          communities - many of which are frequently staffed by guards at  
          the main entrances.  Although a guard's presence is intended to  
          deter unauthorized people from accessing the gated community,  
          the guard also makes it potentially difficult for litigants to  
          effectuate service or serve subpoenas on persons who live in the  
          community.  In fact, this Committee has learned about instances  
          where guards have turned away legitimate and registered process  
          servers.  However, the law is clear: while people have the right  
          to choose where they live, they do not have the right to defeat  
          service by making it physically impossible.  (Khourie v. Sabek  
          (1990) 200 Cal.App.3d 1009, 1013.)  Indeed, California courts  
          have determine that if a resident within a gated community  
          cannot be served, a litigant may effectuate substituted service  
          by serving the guard at a residential gated community.  (Bein v.  
          Brechtel-Jochim Group, Inc. (1992), 6 Cal.App.4th 1387.)


          To resolve difficulties arising from parties unable to  
          effectuate service in gated communities, the Legislature has  
          authorized certain individuals to gain access to a gated  
          community, specifying that access is for a reasonable amount of  
          time and for the sole purpose of performing lawful service of  
          process or service of a subpoena.  Those individuals must also  
          provide any guard with proof of their identity and their status  
          before entering the community.  Currently, those individuals who  
          are authorized to effectuate service are limited to a county  








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          sheriff or marshal, a registered process server, and a private  
          investigator.  



          In explaining the need for this bill, the author states that:


               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 (Penal Code §1326) 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  
               server or private investigator. 


          To resolve the problem identified by the author, this bill  
          reasonably expands the list of individuals who may enter into a  
          gated community for the purpose of effectuating service or  
          subpoenas.  


          Under the original version of this bill, any governmental  
          investigator would be allowed to effectuate service or subpoenas  
          in gated communities.  The original version appears to have been  








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          a reasonable approach because of existing safeguards intended to  
          protect both gated-community residents and litigants.  For  
          example, current law provides that individuals who are  
          authorized to enter gated communities to effectuate service may  
          only access the community for the sole purpose of performing  
          lawful service of process or service of a subpoena.   
          Additionally, those individuals must act within a reasonable  
          time and must provide proof of identity and status.  Given these  
          protections, it seems appropriate to allow all government  
          investigators to effectuate service and subpoenas in gated  
          communities.  Indeed, this Committee anecdotally learned that  
          many state agencies have investigators who have some form of  
          subpoena power and would have benefited from the authorization  
          provided under the original bill.  However, to address concerns  
          that were raised in the Senate, this bill was narrowed to apply  
          only to investigators employed by a district attorney or a  
          public defender.  To maintain the spirit of the bill while still  
          allowing certain governmental entity investigators to effectuate  
          service in gated communities, the author also seeks to take the  
          following reasonable amendments to include investigators  
          employed by the attorney general, a county counsel, and a city  
          attorney:


               On page 2, line 6, after "of" insert: the attorney general,  
          a county counsel, a city attorney,


          SIMILAR PAST LEGISLATION:  AB 1720 (Torres, Chapter 113,  
          Statutes of 2012) allows 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 1742 (Committee on Judiciary, Chapter 706, Statutes of 2005)  
          allows registered process services and sheriff's and marshal's  
          representatives to have access to gated communities to perform  
          service of subpoenas.








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          AB 3307 (Takasugi, Chapter 691, Statutes of 1994) allows  
          registered process services and sheriff's and marshal's  
          representatives to have access to gated communities to perform  
          service of process.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Conference of California Bar Associations (sponsor)


          California District Attorneys Association




          Opposition


          None on file




          Analysis Prepared by:Eric Dang / JUD. / (916)  
          319-2334













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