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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