BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 984 (Hollingsworth)
As Amended June 17, 2010
Hearing Date: June 29, 2010
Fiscal: No
Urgency: Yes
TW:jd
SUBJECT
Service of Process: Time
DESCRIPTION
This bill would require the first attempt to serve a summons and
complaint initiating an action to be made between the hours of
7:00 a.m. and 8:00 p.m. This bill would be enacted as an
urgency statute in order to ensure that service of process is
performed in a manner that does not interfere with a homeowner's
expectation of privacy and freedom from harassment.
BACKGROUND
A complaint is the initiating document of an action filed by a
plaintiff. After filing the complaint with the court, the
plaintiff must give notice of the action to the defendant by
serving the complaint and a summons, which advises the defendant
of the existence of the action and requirements of the defendant
thereafter. In California, the plaintiff has three years from
the date of filing the complaint within which to serve the
summons and complaint on the defendant. The plaintiff can serve
the summons and complaint by personal or mail service or by
publication, as specified.
This bill would specify that the first attempt of service of a
summons and complaint initiating an action shall be made between
the hours of 7:00 a.m. and 8:00 p.m.
CHANGES TO EXISTING LAW
Existing law prescribes that a court has jurisdiction over a
(more)
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defendant as soon as service of the complaint is effectuated.
(Code Civ. Proc. Sec. 410.50.)
Existing law provides that a plaintiff has three years within
which to serve the summons and complaint on the defendant.
(Code Civ. Proc. Sec. 583.210.)
Existing law prescribes the methods by which service of a
summons and complaint must be effectuated. (Code Civ. Proc.
Sec. 415.10 et seq.)
Existing law authorizes a summons and complaint to be personally
served by delivering a copy of the summons and complaint to the
person to be served; service of the summons is completed at the
time of delivery. (Code Civ. Proc. Sec. 415.10.)
Existing law authorizes service of a summons and complaint on a
business by leaving a copy of the summons and complaint with a
person in charge of the business during usual office hours.
(Code Civ. Proc. Sec. 415.95(a).)
Existing law authorizes service on a party of a notice of motion
by leaving the notice at the party's residence between the hours
of 8:00 a.m. and 6:00 p.m. with some person at least 18 years of
age. (Code Civ. Proc. Sec. 1011(b).)
Existing law authorizes service on a business of a notice of
motion by leaving the notice with a receptionist or with a
person having charge thereof; if a receptionist or person in
charge is located, service may be made by leaving the notice at
the business between the hours of 9:00 a.m. and 5:00 p.m. (Code
Civ. Proc. Sec. 1011(a).)
Existing law authorizes an individual over the age of 18 who is
not a party to the action to perform a service of a summons and
complaint. (Code Civ. Proc. Sec. 414.10.)
Existing law regulates service of process performed by
registered process servers. (Bus. & Prof. Code Sec. 22350 et
seq.)
Existing law provides the following list of individuals
performing service of process who are exempt from regulation as
registered process servers:
1) any person making less than 10 services of process per
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year;
2) any sheriff, marshal, or government employee who is
acting within the course and scope of his or her
employment;
3) an attorney or his or her employee, when serving process
related to cases for which the attorney is providing legal
services;
4) any person who is specially appointed by a court to
serve its process; and
5) a registered professional photocopier performing service
of process of subpoenas for the production of records.
This bill would specify that the first attempt to serve a
summons and complaint initiating an action must be made between
the hours of 7:00 a.m. and 8:00 p.m.
COMMENT
1. Stated need for the bill
The author writes:
SB 984 has been introduced in order to ensure that service of
process is performed in a manner that does not interfere with
a homeowner's reasonable expectations of privacy and freedom
from harassment.
2. Expectations of privacy and freedom from harassment: no
evidence of a problem
This bill would require service of a summons and complaint
initiating an action to be made between the hours of 7:00 a.m.
and 8:00 p.m. The author argues that serving a summons and
complaint outside of these timeframes violates a party's privacy
and is harassing conduct. Opponents of this bill argue that
there is no evidence that existing law does not adequately
provide residents with privacy and protection from harassment.
The author has not provided the Committee with information that
existing law is being abused by individuals effectuating service
of process.
a. Privacy
This bill seeks to protect privacy through the additional
regulation of service of a summons and complaint. However,
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California law recognizes the importance of serving legal
papers and contains specified instances in which a process
server would not be in violation of a homeowner's privacy.
Penal Code Section 602.8(c)(2) permits any person on the
homeowner's premises who is engaging in activities protected
by the California or United States Constitution. Penal Code
Section 602.8(c)(3) exempts process servers from violation of
personal trespass. Penal Code Section 602(n) provides that a
process server is exempt from violation of vehicular trespass
by driving a vehicle upon the homeowner's property. These
codes do not specify which timeframes a process server is
exempt from trespass and which timeframes a homeowner can
assert an expectation of privacy. Rather, these exemptions
from trespass apply 24 hours a day.
b. Harassment
This bill seeks to guard against harassment. Penal Code
Section 646.9(e) defines "harassment" as "a knowing and
willful course of conduct directed at a specific person which
seriously alarms, annoys, torments, or terrorizes the person,
and which serves no legitimate purpose." Arguably, completing
service of process of a summons and complaint serves a
legitimate legal purpose and would fall outside of the
definition of harassing conduct.
In the event service of process is performed in a harassing
manner, the registered process server is subject to penalties
prescribed by existing law. Business and Professions Code
Section 22356 provides that a registered process server is
responsible at all times for the good conduct of his or her
employees acting within the course or scope of their
employment. A registered process server is subject to losing
his or her $2,000 bond and registration revocation for failing
to comply with the laws governing service of process. (Bus. &
Prof. Code Secs. 22357, 22358.) It is not clear that existing
law fails to protect individuals from harassing conduct
resulting from improper service of process.
c. Necessity for urgency is not known
This bill would require its provisions to take effect
immediately in order to protect a homeowner's expectations of
privacy and freedom from harassment. Committee staff is not
aware of information showing that homeowners are at risk of
impending danger of encroachments on privacy and subject to
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harassment by process servers. Further, as discussed above,
the Legislature has previously determined that service of
legal process does not fall within the purview of criminal
conduct that would violate an individual's rights of privacy
and freedom of harassment.
3. Continuing opposition to the bill after most recent
amendments
Prior to the most recent amendments, this bill was aimed at
regulating registered process servers. The bill would have
penalized registered process servers for failing to comply with
the provisions of this bill by providing that the offending
process server's license could be revoked, and a fine of $10,000
would be assessed against the process server for serving
documents at the wrong address. If service was made at the
wrong address, the person who caused such service (i.e., the
paralegal, attorney, secretary, investigator, or even the
plaintiff who provided the wrong address) because of an error
would be responsible for paying the $10,000 fine. This bill
also would have required the process server, at the time of
serving the party, to state his or her full name and purpose for
being at the residence, and the process server would have had to
identify the person being served. If service was made in
violation of these provisions, the process server would be fined
$25,000, payable to the party being served. There was
opposition to these provisions, and the author subsequently
amended the bill to its current form in an effort to address the
opponents' concerns.
The Committee has not, however, received any letters indicating
that the amendments have removed opposition. The California
Association of Licensed Investigators, Inc. (CALI) and the
California Association of Legal Support Professionals (CALSPro)
have each submitted post-amendment opposition letters.
CALSPro argues that this bill is unnecessary and unenforceable.
CALSPro continues to be opposed to this bill and states:
Process servers naturally try to serve process at reasonable
hours when the recipient is likely to be home, in the
interests of due process, safety, and economy. . . . The bill
is also unenforceable because it will affect only the
Registered Process Server members of our client association.
The problem is that a very large percentage of process serving
is performed by persons not required to be registered pursuant
to the Business and Professions Code. Persons who perform
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fewer than 10 services of process per year, people who serve
without specific compensation for service of process,
employees of lawyers, and others are exempt from registration.
In fact, the law permits anyone over 18 not a party to the
action to serve process, and yet the bill will be completely
unenforceable against anyone except Registered Process
Servers.
In contrast with the hundreds or perhaps thousands of
unregistered servers who could violate the provisions of SB
984 with impunity, Registered Process Servers would be subject
to suspension or revocation of their registration (Business
and Professions Code Section 22358), forfeiture of the $2000
penal amount of their license bonds (Section 22357), and even
potential misdemeanor prosecution (Section 22359).
We are also concerned about issues of proof: it is unclear
how the server will document and prove what time the first
attempt was made, and the bill additionally contains no
provision to alert servers when a document is subject to the
time limitation in the bill.
CALSPro provided proposed amendments to the bill that would have
required the county clerk to investigate improper services of
process performed by all servers, not just registered process
servers. These amendments proposed by CALSPro would establish a
method for handling complaints for violations of the service
outside of the timeframe proposed by this bill. Further, a
method of evaluating the facts of the alleged improper service
would be necessary to give both the served party and the process
server an opportunity to substantiate their claims.
CALSPro also suggested that the Judicial Council modify the
current summons form to provide a place on the form to indicate
whether the summons pertained to initiating papers of the
action. This provision would instruct process servers that the
initial service attempt could only be made between 7:00 a.m. and
8:00 p.m. and the process servers could then comply with the
restriction. Without this provision, process servers would not
know whether other defendants had been served with the summons
and complaint (see Comment 6) or whether the summons and
complaint were the initiating documents of the action. In any
given case, multiple summons and complaints may be issued and
filed and it may be uncertain whether the papers being served
are those initiating the action or papers being served after the
action was initiated. The author declined to accept these
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amendments.
Consumer Attorneys of California opposes the bill, arguing that
"Business and Professions Code [Section] 22358 ? sets forth the
procedure to suspend or revoke the license of a process server
who makes improper service or if a person makes a complaint that
he or she has been injured by the service of process. We find
this to be sufficient for any alleged improper actions made by a
process server as it requires an investigation by the local
prosecutor and still protects the process server's right to due
process by giving him or her a hearing by an administrative law
judge."
4. Method of service of first attempt is unclear
This bill would regulate the first attempt of service of a
summons and complaint. The bill's language is not clear as to
which method of service (personal, mail, or published) can only
be effectuated during the hours of 7:00 a.m. and 8:00 p.m.
Since the plaintiff cannot control the time of delivery or
reading of mail received by the defendant or the moment at which
the defendant receives notification of service by publication,
it is presumed the author intended the time restriction only to
apply to personal service.
5. Bill provisions conflict with existing requirements for
service on businesses
This bill would restrict the time during which service of the
summons and complaint on a defendant could be effectuated.
However, this bill is not clear as to which types of defendants
(individuals or entities) this bill applies. Existing law
provides that a business may only be served during usual office
hours. (Code Civ. Proc. Sec. 415.95(a).) The process server
could interpret "usual office hours" to mean between 9:00 a.m.
and 5:00 p.m., as provided under Code of Civil Procedure Section
1011(a). However, this bill would conflict with the existing
statute for service of process on a business because it would
provide that service of a summons and complaint could be made
between 7:00 a.m. and 8:00 p.m.
6. Clarification of party to which first attempt is being
restricted
This bill would regulate the first attempt of service of a
summons and complaint. The bill is unclear as to whether this
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provision applies to the first attempt to serve every defendant
of the summons and complaint or just the first defendant being
served. This bill appears to only apply to the first service of
the first defendant being served with the summons and complaint.
This interpretation is appropriate given that, once the first
defendant is served, additional defendants could then be made
aware of the action and may attempt to avoid service of process.
Many times, when defendants are aware of the existence of a
filed action and the pending service of the summons and
complaint, the defendants make service very difficult.
7. Clarification of summons and complaint versus notice of
motion
It is important to note that this bill pertains to service of a
summons and complaint and its language would be added into the
Code of Civil Procedure section regulating the service of
summons and complaints. A separate statute exists for the
regulation of service of notice of motions. (See Code Civ.
Proc. Sec. 1011.) This bill does not affect the service hours
of notices of motions.
8. Amendments to address concerns
In order to address the above concerns, Committee staff
recommends the following amendments.
Amendments:
1. On page 2, line 3, after "to" insert "personally".
2. On page 2, line 5, after "evening" insert ", subject to
Section 415.95."
9. Sunset
This bill seeks to establish a timeframe within which the first
attempt of a summons and complaint must be served. To make
certain this new timeframe is working effectively, and there are
no unintended effects upon the ability of plaintiffs to serve a
summons and complaint, the Committee should amend the bill to
include a three-year sunset provision.
Support : None Known
Opposition : Absolute Investigations; Assured Judgment Recovery;
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Astute Investigations; Atwater Investigations; Auto Temp
Investigations; Available Investigations Services; Beren
Investigative Services; Bermudez Group, Inc.; Blackburn
Investigative Services; Blais Investigating Agency; Bosco Legal
Services, Inc.; Brady Investigations; Britton Investigations &
Legal Services; Bryan L. Giles & Associates; Bryant
Investigations & Altruistic Security Services; Business
Controls, Inc.; California Association of Legal Support
Professionals; California Association of Licensed Investigators,
Inc.; Commercial Process Serving, Inc.; Consumer Attorneys of
California; Deanne Acu?a Investigative Services; Discovery
Detective Group; Discovery Judgment Recovery; Escape
Investigations; Fasulo Investigations; GAB Investigations;
Gailey Associates, Inc.; Gane Investigations; Ginter
Investigations, Inc.; Grotewold Investigations; Hilton
Investigations; Hoy & Associates Investigations; InfoNuggets
Network; Integrity Nationwide Investigations; Intelle Quest
Investigations; Inter-Agency Investigations, Inc.; Intercoastal
Investigations; Kelsay Investigations; Kimberly Acu?a
Investigative Services; Jean Kyles & Associates; JHRI, Inc.;
Klopper Investigations; Krout and Schneider, Inc.; La Marche &
Bradley Investigations; Legal Research Services Investigations,
Inc.; Link Information Service; Luginbill Investigative
Services, Inc.; Michael J. Martin Investigations; Murphy &
Associates, Inc.; On the QT Investigations; Pacific
Investigations; Palma & Palma Investigations; Palomar
Investigative Group, Inc.; Parker & Associates; PCG Consultants;
Perrin Investigative Service; PI Resources; Private
Investigative Research Company; Probity Investigations; Process
Server Institute; Proserviceplus; Rod Blythe Investigations;
Safari Legal Support Services; Sarkis Detective Agency; Sellers
Investigation Group; Streamline Investigations, Inc.; Sunrise
Investigative Services; Thin Blue Line Investigations; West
Harbor Intelligence Incorporated; Wheatley, Scott & Company;
Whiteacre Investigations; three individuals
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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