BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1720 (Torres)
As Amended March 22, 2012
Hearing Date: June 12, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Service of Process: Private Investigators
DESCRIPTION
This bill would allow 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, as specified.
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.
Separately, Business and Professions Code Section 22350
specifies circumstances under which certain persons must
register as process servers, but excludes several categories of
people from registration even though they might also perform
service of process, including, among others, licensed private
investigators or their employees. Despite this recognition of
their ability to perform service of process, because they are
not expressly listed in Section 415.21, private investigators do
not retain the statutory authority to enter gated communities in
the same fashion as registered process servers or county
sheriff's and marshal's representatives.
(more)
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This bill would allow licensed private investigators to also
enter a gated community for a reasonable amount of time for the
sole purpose of performing lawful service of process or service
of subpoena, as specified. The bill would also clarify 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.
CHANGES TO EXISTING LAW
Existing law provides in relevant part that except as otherwise
provided by statute, the court in which an action is pending has
jurisdiction over a party from the time summons is served as
specified. (Code. Civ. Proc. Sec. 410.50.)
Existing law permits a plaintiff to have the clerk of the court
issue a summons for any defendant, as specified. (Code Civ.
Proc. Sec. 412.10.) Existing law provides that except as
otherwise required by statute, the summons shall be directed to
the defendant, signed by the clerk and issued under the seal of
the court, and it shall contain specified information,
including, among other things: the title of the court in which
the action is pending, names of the parties to the action, and
notice that the person has been sued, as specified. (Code Civ.
Proc. Sec. 412.20.) A copy of the summons may then be served on
the defendant, as specified, including, among other things, that
it may be served by personal delivery of a copy of the summons
and complaint to the person to be served. (Code Civ. Proc. Sec.
415.10 et seq.)
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 ten 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, that private investigators and
their employees. (Bus. & Prof. Code Sec. 22350.)
Existing law provides that notwithstanding any other provision
of law, a person shall be granted access to a gated community
for a reasonable period of time for the purpose of performing
lawful service of process or service of a subpoena, upon
identifying to the guard the person or persons to be served, and
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upon displaying a current driver's license or other
identification, and one of the following:
A badge or other confirmation that the individual is acting in
his or her capacity as a representative of the county sheriff
or marshal.
Evidence of current registration as a process server, as
specified. (Code Civ. Proc. Sec. 415.21(a).)
Existing law provides that the section applies only to a gated
community that is staffed by a guard or other security personnel
assigned to control access to the community at the time service
of process is attempted. (Code Civ. Proc. Sec. 415.21(b).)
This bill would amend the above authority to provide that the
described access shall be for the sole purpose of performing
lawful service of process or service of subpoena, and that a
person may also gain such access if he or she presents in
addition to a driver's license or other identification, evidence
of licensure as a private investigator under the Business and
Professions Code, as specified.
This bill would state the intent of the Legislature to not
abrogate or modify the holding of the court in Bein v.
Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, relating
to service upon a guard in a gated community.
COMMENT
1. Stated need for the bill
According to the author:
Section �415.21] of the Code of Civil Procedure specifically
authorizes registered process servers �to have] access to
gated communities for service of process or to serve a
subpoena. However, while private investigators are exempt
from registering as a process server and are allowed to serve
subpoenas and service of process, they are not specifically
authorized to enter gated communities.
Civil Procedure Code Section �415.21] inadvertently excludes
private investigators from the list of individuals authorized
to enter a community that is gated. AB 1720 addresses this
oversight in current law that has caused many private
investigators to be turned away at gated communities by
diligent guards when attempting to perform a service of
process or serve a subpoena. AB 1720 helps ensure that all
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individuals are duly served process or a subpoena whether they
live in or outside a gated community by clarifying that
private investigators are allowed the same access as
registered process servers.
2. Providing reasonable access to gated communities for the
narrow purpose of service appears appropriate
This bill would allow licensed private investigators to enter
gated communities for the sole purpose of performing service of
process or subpoenas, upon meeting the section's other specified
requirements. That section currently allows for registered
service processors and sheriff's or marshal's representatives to
enter gated communities for a reasonable amount of time for the
purpose of service of process or subpoenas, upon meeting the
section's specified requirements. Section 415.21 also currently
provides that the authority shall only apply to a gated
community that is staffed at the time service of process is
attempted by a guard or other security personnel assigned to
control access to the community. This bill would not change
that requirement.
As noted in the Background, existing law has recognized the
ability of private investigators to serve process, as reflected
in existing law Section 22350 of the Business and Professions
Code. Section 22350 provides requirements for registration by
process servers, with specified exceptions for, among other
things, sheriffs, marshals, or government employees acting in
the course and scope of his or her employment; an attorney or
his or her employees when serving process related to the
attorney's cases; and a licensed private investigator and his or
her employees. Committee staff notes that in 2005, an early
version of AB 496 (Aghazarian, Ch. 300, Stats. 2005) would have
narrowed the exceptions to the registration requirements of
process servers and thereby excluded private investigators from
serving process except in those cases in which they would be
providing professional services. As reflected in both an
Assembly and the Senate Judiciary Committee analyses, private
investigators strongly opposed that earlier version of the bill,
arguing they have historically been allowed to serve process
based on the exemption of private investigators from the
registration requirement of Section 22350, and that their
licensing requirements already provider greater consumer
protections than process-server registration requirements.
Ultimately, that part of the bill was removed, and existing law
Section 22350 continues to provide private investigators an
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exemption from the registration requirements. (See Asm.
Judiciary Com., analysis of AB 496 (2005-2006 Reg. Session),
April 5, 2005 analysis of bill as amended March 30, 2005; pp. 1,
4-5; see also Sen. Judiciary Com., analysis of AB 496 (2005-2006
Reg. Session), June 5, 2005, pp. 1-2, 4-5.)
Allowing licensed private investigators to enter gated
communities for the purpose of service of process or subpoenas
appears to be appropriate when access is limited to that sole
purpose. That limited access would not only facilitate the
important purposes of service of process and service of a
subpoena, but it would reduce added costs associated with the
repeated efforts to gain access without that express
authorization, delays caused in cases by delays in service, and
potentially even default judgments against defendants who might
claim they did not appear for lack of proper service. (See
Comment 3 below.) Committee staff does note, however, that none
of the other categories of individuals recognized by Section
22350 as having the ability to serve process without registering
as process servers are provided the express statutory authority
under Section 415.21 to enter gated communities for that
purpose. This bill is narrowed to the purpose of addressing
specific problems experienced by private investigators who
attempt to lawfully serve process in gated communities and are
prohibited from doing so or face significant delays in getting
that access. Moreover, the bill narrows the authority granted
to all specified parties under Section 415.21 by allowing them
to gain entrance for the sole purpose of performing service.
3. Bein v. Brechtel-Jochim Group, Inc.
As did the enacting legislation of Section 415.21, this bill
includes intent language to make clear that the provisions of
this bill do not abrogate or modify the holding of the court in
Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387.
(See AB 3307 (Takasugi, Ch. 691, Stats. 1994); see also Sen.
Judiciary Com., analysis on AB 3307 (1993-1994 Reg. Session),
Aug. 16, 1994, pp. 3-4.)
That case involved a breach of contract claim by Bein against
the Brechtel-Jochim Group (and the Brechtels and Jochims
individually), whereupon Bein attempted to have the Jochims
served at their residence on three separate occasions and
substituted service on a woman was eventually accomplished.
Service upon the Brechtels also proved difficult as, at each
time, the process server was denied access to the gated
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community where the Brechtels lived by the guard station at the
community's entrance. In that instance, the process server
finally resorted to substituted service upon the guard. Copies
of summons and complaint were mailed thereafter to both sets of
individual defendants and the corporation, however, none of the
defendants responded and default judgment was entered against
them. The defendants later contested the court's jurisdiction
based on lack of proper service, arguing that service upon a
guard at a gated community was not the same as service upon a
"competent member of the household or a person apparently
charged of the business." The appellate court disagreed and
held that the guard qualified as a competent member of the
household and a person apparently in charge.
The intent language of this bill, like the enacting legislation,
would allow passage through gated communities in order to ensure
defendants receive important legal documents, and prevent
difficulties as described in the Bein case, but also leave the
guard as a qualified recipient for process under Bein.
4. Opposition concerns
The Professional Investigators Political Action Committee
(PI-PAC) writes that it opposes AB 1720 because it "creates
landmark legislation against the private investigative industry
by taking away an important employer right to employ and
supervise employees. AB 1720 further lacks any effective remedy
for non-compliance." PI-PAC seeks an amendment to specifically
include employees of licensed investigators and to allow
substituted service of the gate guard on the first attempt if
ingress into a gated community is frustrated or denied.
As to the latter suggestion, this bill does not affect the
decision in Bein v. Brechtel-Jochim Group, Inc. (1992) 6
Cal.App.4th 1387, as described in Comment 3 above. Thus, any
existing ability to serve process on a guard who presumably
refuses entrance is not changed by this bill. The sponsor, the
California Association of Licensed Investigators (CALI), notes
that "�w]ith regard to concerns raised that guards may not
comply with the new requirement that licensed private
investigators be provided access for the service of process,
CALI believes that there will be substantial compliance if AB
1720 is enacted and provides clarity of this issue in law."
Furthermore, from a public policy standpoint, allowing an
investigator to use substituted service in this fashion would
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significantly reduce the likelihood that an individual would be
personally served. Moreover, if existing law does not otherwise
provide for substituted service after a single effort to legally
serve someone, it is not clear why the bill should do so here.
As to the first argument that this bill "compromises the
employer/employee relationship and would be the first known law
to prevent private investigator employers from delegating and
performing the duties afforded to them under the PI Act and B&P
Section 22350(b)(4)," Committee staff notes that the employees
of registered process servers are not allowed to serve process
in gated communities either. Nor are other types of persons who
are permitted to serve process or subpoenas under the same
Business and Professions section, Section 22350 (for example,
attorneys). CALI adds that '�t]here is no law providing
licensed private investigators with the right to have their
employees serve process."
Moreover, unlike their employers, employees of private
investigator are not themselves licensed by the Business and
Professions Code, which is a key consumer safeguard when
considering who should be allowed into an otherwise private
gated community for this purpose. Ultimately, private
investigators may still employ and supervise their
employees-those employees simply will not be permitted to enter
into gated communities to serve process or to serve subpoenas.
Support : Executive Council of Homeowners; Professional
Investigators of California
Opposition : Professional Investigators Political Action
Committee
HISTORY
Source : California Association of Licensed Investigators
Related Pending Legislation : None Known
Prior Legislation :
AB 1742 (Committee on Judiciary, Ch. 706, Stats. 2005), allowed
registered process servers and sheriff's and marshal's
representatives to also have access to gated communities, as
otherwise specified, to perform service of subpoenas.
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AB 496 (Aghazarian, Ch. 300, Stats. 2005) See Comment 2.
AB 3307 (Takasugi, Ch. 691, Stats. 1994) See Background and
Comment 3.
Prior Vote :
Assembly Floor (Ayes 68, Noes 0)
Assembly Judiciary Committee (Ayes 8, Noes 0)
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