BILL ANALYSIS Ó SB 1431 Page 1 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 SB 1431 Page 2 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 SB 1431 Page 3 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.) SB 1431 Page 4 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 SB 1431 Page 5 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 SB 1431 Page 6 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. SB 1431 Page 7 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 SB 1431 Page 8