California Legislature—2013–14 Regular Session

Assembly Bill No. 2286

Introduced by Assembly Member Wagner

February 21, 2014

An act to repeal Chapter 16 (commencing with Section 22350) of Division 8 of, and to add Chapter 5.7 (commencing with Section 6460) to Division 3 of, the Business and Professions Code, relating to process servers.

LEGISLATIVE COUNSEL’S DIGEST

AB 2286, as introduced, Wagner. Process servers.

Existing law requires process servers to register with the county clerk where he or she resides or has a principal place of business. Existing law also requires any corporation or partnership that derives compensation from service of process in this state to register with the county clerk where the corporation or partnership has its principal place of business. Existing law requires the county clerk to retain the certificate of registration, as specified. Existing law also requires the county clerk to receive Live Scan fingerprint results and the presiding judge of the superior court is authorized to review the criminal record of registrants convicted of a felony and to take appropriate action, as specified. Existing law also requires the county clerk to provide a variety of administrative services pertaining to the registration of process servers.

Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation.

This law would remove oversight of the registration of process servers from the counties and place it within the State Bar of California.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Chapter 5.7 (commencing with Section 6460) is
added to Division 3 of the Business and Professions Code, to read:

 

Chapter  5.7. Process Servers

 

6460.  

(a) Any natural person who makes more than 10 services
of process within this state during one calendar year, for specific
compensation or in expectation of specific compensation, where
that compensation is directly attributable to the service of process,
shall file and maintain a verified certificate of registration as a
process server with the State Bar of California. Any corporation
or partnership that derives or expects to derive compensation from
service of process within this state shall also file and maintain a
verified certificate of registration as a process server with the State
Bar of California.

(b) This chapter shall not apply to any of the following:

(1) Any sheriff, marshal, or government employee who is acting
within the course and scope of his or her employment.

(2) An attorney or his or her employees, when serving process
related to cases for which the attorney is providing legal services.

(3) Any person who is specially appointed by a court to serve
its process.

(4) A licensed private investigator or his or her employees.

(5) A professional photocopier registered under Section 22450,
or an employee thereof, whose only service of process relates to
subpoenas for the production of records, which subpoenas specify
that the records be copied by that registered professional
photocopier.

6461.  

(a) The certificate of registration of a registrant who is
a natural person shall contain the following:

(1) The name, age, address, and telephone number of the
registrant.

(2) A statement, signed by the registrant under penalty of
perjury, that the registrant has not been convicted of a felony, or,
if the registrant has been convicted of a felony, a copy of a
certificate of rehabilitation, expungement, or pardon.

(3) A statement that the registrant has been a resident of this
state for a period of one year immediately preceding the filing of
the certificate.

(4) A statement that the registrant will perform his or her duties
as a process server in compliance with the provisions of law
governing the service of process in this state.

(b) The certificate of registration of a registrant who is a
partnership or corporation shall contain the following:

(1) The names, ages, addresses, and telephone numbers of the
general partners or officers.

(2) A statement, signed by the general partners or officers under
penalty of perjury, that the general partners or officers have not
been convicted of a felony.

(3) A statement that the partnership or corporation has been
organized and existing continuously for a period of one year
immediately preceding the filing of the certificate or a responsible
managing employee, partner, or officer has been previously
registered under this chapter.

(4) A statement that the partnership or corporation will perform
its duties as a process server in compliance with the provisions of
law governing the service of process in this state.

(c) The State Bar of California shall retain the certificate of
registration for a period of three years following the expiration
date of the certificate, after which time the certificate may be
destroyed if it is scanned or if the conditions specified in Section
26205.1 of the Government Code are met. If the certificate is
scanned, the scanned image shall be retained for a period of 10
years, after which time that image may be destroyed and,
notwithstanding Section 26205.1 of the Government Code, no
reproduction thereof need be made or preserved.

6461.5.  

(a) At the time of filing an initial certificate of
registration or renewing a certificate of registration that has lapsed,
the registrant shall also submit a completed Request for Live Scan
form confirming fingerprint submission to the Department of
Justice and the Federal Bureau of Investigation, in order to verify
that the registrant has not been convicted of a felony. The State
Bar of California shall utilize the Subsequent Arrest Notification
Contract provided by the Department of Justice for notifications
subsequent to the initial certificate of registration.

(b) If, after receiving the results of the Request for Live Scan,
the State Bar of California is advised that the registrant has been
convicted of a felony, the State Bar of California is authorized to
review the criminal record and, unless the registrant is able to
produce a copy of a certificate of rehabilitation, expungement, or
pardon, as specified in paragraph (2) of subdivision (a) of Section
22351, notify the registrant that the registration is revoked. An
order to show cause for contempt may be issued and served upon
any person who fails to surrender a registered process server
identification card after a notice of revocation.

6462.  

At the time of filing the initial certificate of registration,
a registrant shall pay the following fees to the State Bar of
California:

(a) A fee of one hundred dollars ($100).

(b) A fee to cover the actual costs of processing the completed
fingerprint cards when submitted with the initial certificate of
registration.

(c) A fee to cover the actual cost of issuing a registered process
server identification card.

6463.  

A certificate of registration shall be accompanied by a
bond of two thousand dollars ($2,000), executed by an admitted
surety insurer and conditioned upon compliance with the provisions
of this chapter and all laws governing the service of process in this
state. The total aggregate liability on the bond is limited to two
thousand dollars ($2,000). As an alternative to the bond, the
registrant may deposit with the State Bar of California, cash or a
money order in the amount of two thousand dollars ($2,000).

6464.  

A certificate of registration shall be effective for a period
of two years or until the date the bond expires, whichever occurs
first. Thereafter, a registrant shall file a new certificate of
registration or a renewal of the certificate of registration and pay
the fee required by Section 6462. A certificate of registration may
be renewed up to 60 days prior to its expiration date and the
effective date of the renewal shall be the date the current
registration expires. The renewal shall be effective for a period of
two years from the effective date or until the expiration date of the
bond, whichever occurs first.

6465.  

(a) The State Bar of California shall maintain a register
of process servers and assign a number and issue an identification
card to each process server. The State Bar of California shall issue
a temporary identification card, for no additional fee, to applicants
who are required to submit Request for Live Scan forms for
background checks to the Federal Bureau of Investigation and the
Department of Justice. This card shall be valid for 120 days. If
clearance is received from the Federal Bureau of Investigation and
the Department of Justice within 120 days, the State Bar of
California shall immediately issue a permanent identification card
to the applicant. Upon request of the applicant, the permanent
identification card shall be mailed to the applicant at his or her
address of record. Upon renewal of a certificate of registration,
the same number shall be assigned, provided there is no lapse in
the period of registration.

(b) The temporary and permanent identification cards shall be
not less than 31⁄4 inches by 2 inches and shall contain at the top
the title, “Registered Process Server,” followed by the registrant’s
name, address, registration number, and date of expiration. In the
case of a natural person, it shall also contain a photograph of the
registrant in the lower left corner. The identification card for a
partnership or corporation registration shall be issued in the name
of the partnership or corporation, and shall not contain a
photograph.

6466.  

A registrant shall be responsible at all times for the good
conduct of his or her employees acting within the course or scope
of their employment, and any person acting as an independent
contractor within the course or scope of the agency relationship
with the registrant.

6466.5.  

(a) In addition to the information required by
subdivision (b) of Section 22360, any proof of service of any
process which is signed by an independent contractor of a registrant
under this chapter shall indicate that the proof of service was signed
as an independent contractor of a registered process server. The
proof of service shall indicate the number assigned pursuant to
Section 6465 of both the independent contractor and the entity
registered under this chapter.

(b) No registrant shall permit any individual to sign any proof
of service of any process as an independent contractor unless all
of the following conditions are met:

(1) The independent contractor is performing pursuant to a
written independent contractor agreement with the registrant.

(2) The independent contractor supplies proof of bonding under
Section 6463, if applicable.

(3) The registrant exercises minimal supervision or control over
the means of accomplishing the service of any process assigned
by the registrant. The registrant may communicate a deadline for
the service of process and request notification that such service
has been completed.

(4) The registrant imposes no restrictions on the independent
contractor’s ability to perform services for others registered under
this chapter.

(5) The independent contractor supplies proof that any required
business licenses have been obtained.

(c) Persons not meeting the criteria of subdivision (b) shall be
treated as employees of the registrant while persons meeting the
criteria of subdivision (b) shall be treated as independent
contractors.

(d) This section shall not preclude an independent determination
of employment under any other provision of law.

6467.  

(a) Any person who recovers damages in any action or
proceeding for injuries caused by a service of process which was
made by a registrant and did not comply with the provisions of
law governing the service of process in this state may recover the
amount of the damages from the bond required by Section 6463.

(b) Whenever there has been a recovery against a bond under
subdivision (a), the registrant shall file a new bond or cash deposit
within 30 days to reinstate the bond or cash deposit to the amount
required by Section 6463. If the registrant does not file the bond
within 30 days, the certificate of registration shall be revoked and
the remainder of the bond forfeited to the State Bar of California.

6468.  

(a) A certificate of registration may be revoked or
suspended whenever it has been determined that the registrant has
made a service of process, including service completed by an
employee or independent contractor of the registrant, which does
not comply with the provisions of law governing the service of
process in this state or constitutes an improper service of process
not amounting to a violation of law.

(b) An investigation concerning the revocation or suspension
of a certificate of registration may be commenced at any time at
the option of the State Bar of California if the State Bar of
California deems it to be appropriate. A complaint by any person
who has alleged that he or she has been injured by a service of
process shall be investigated by the public prosecutor. The
investigation shall determine if the registrant complied with the
provisions of law governing the service of process or constituted
improper service of process not amounting to a violation of the
law.

(c) If the public prosecutor determines from the investigation
that cause may exist for the suspension or revocation of the
certificate of registration, he or she shall set the matter for hearing
and give notice to the registrant. That hearing shall be conducted
in accordance with Chapter 5 (commencing with Section 11500)
of Division 3 of Title 2 of the Government Code except that the
decision of the administrative law judge shall be final. For the
purposes of those provisions, the public prosecutor shall be deemed
to be the agency.

(d) If, after the hearing, the State Bar of California is notified
after the decision has become effective that the administrative law
judge has directed that the registrant’s certificate be suspended or
revoked, the State Bar of California shall forthwith suspend or
revoke the certificate. If the certificate is revoked, the bond or cash
deposit required by Section 6463 shall be forfeited to the State Bar
of California subject to the right of a person to recover against the
bond or cash deposit under Section 6467.

6469.  

Any person who violates any of the provisions of this
chapter is guilty of a misdemeanor.

6469.5.  

Any proof of service of any process which is signed
by a registrant under this chapter shall indicate the number assigned
to the registrant by Section 6465.

SEC. 2.  

Chapter 16 (commencing with Section 22350) of
Division 8 of the Business and Professions Code is repealed.