Existing law authorizes service of a notice or other paper in a civil action by personal delivery to the party or attorney on whom service is required to be made, or, for service upon a party, by leaving the notice or other papers with a person 18 years of age or older at the partys residence between the hours of 8 a.m. and 6 p.m. Existing law provides that if, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the partys residence, the notice or papers may be served by mail.

This bill would extend those hours to between the hours of 8 a.m. and 8 p.m.

Existing law authorizes service of a notice or other paper in a civil action by personal delivery to the party or attorney on whom service is required to be made, or, for service upon a party, by leaving the notice or other papers with a person 18 years of age or older at the partys residence between the hours of 8 a.m. and 6 p.m. Existing law provides that if, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the partys residence, the notice or papers may be served by mail.

This bill would extend those hours to between the hours of 8 a.m. and 8 p.m.

Existing law authorizes service of a notice or other paper in a civil action by personal delivery to the party or attorney on whom service is required to be made, or, for service upon a party, by leaving the notice or other papers with a person 18 years of age or older at the partys residence between the hours of 8 a.m. and 6 p.m. Existing law provides that if, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the partys residence, the notice or papers may be served by mail.

This bill would require the first attempt of service upon a party at a partys residence to be made during those hours, and would authorize subsequent attempts to be made between 7 a.m. and 9 p.m. extend those hours to between the hours of 8 a.m. and 8 p.m.

Existing law authorizes service of a notice or other paper in a civil action by personally, by personal delivery to the party or attorney on whom service is required to be made, or, for service upon a party, by leaving the notice or other papers with a person 18 years of age or older at the partys residence between the hours of 8 a.m. and 6 p.m. Existing law provides that if, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the partys residence, the notice or papers may be served by mail.

This bill would extend the hours for leaving a notice or other paper require the first attempt of service upon a party at a partys residence to be made during those hours, and would authorize subsequent attempts to be made between 7 a.m. and 9 p.m.

Existing law authorizes service of a notice or other paper in a civil action by personally, by delivery to the party or attorney on whom service is required to be made, or, for service upon a party, by leaving the notice or other papers with a person 18 years of age or older at the partys residence between the hours of 8 a.m. and 6 p.m.

This bill would extend the hours for leaving a notice or other paper at a partys residence to between 7 a.m. and 9 p.m.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2286

Author:(Chen)

As Amended Ver:June 14, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Extends the hours provided for leaving notice or other papers with an adult at a party to litigation's home. Specifically, this bill provides that any attempt at serving of notice or other papers on a party at the party's home must occur between 8 a.m. to 8 p.m.

EXISTING LAW:

1. Provides that service of notice may be made upon the office of an attorney representing a party to a civil proceeding by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person. (Code of Civil Procedure Section 1011(a).)
2. Provides that if a person is not present at the attorney's office to accept the service of the notice, service may be made by the notice or other papers in a conspicuous place, in an envelope or package clearly labeled to identify the attorney being served, between the hours of nine in the morning and five in the afternoon. (Id.)
3. Provides that if any attorney's office is not open to receive service, personal service may be made at the attorney's home, so long as it is in the same county as the attorney's office, with any person over 18 years of age. (Id.)
4. Provides that a party may be served a notice or other paper via electronic service if the party has expressly consented to receive electronic service. (Code of Civil Procedure 1010.6.)
5. Provides that a party to litigation may be served at their home between the hours of 8 a.m. and 6 p.m. If the party is not present, the notice or other papers may be left with a person 18 years of age or older. If no person is present, the notice and other papers may be mailed to the party or served upon the clerk of the court if the party's address is unknown. (Code of Civil Procedure Section 1011(b).)

FISCAL EFFECT: None

COMMENTS: This bill seeks to expand the hours for serving notice and other papers upon a party to litigation when the notice cannot be provided to the person via their attorney or electronic delivery. The parties receiving service at home are frequently lower income litigants who cannot afford an attorney and must appear in court on a pro per basis. Because these parties are generally not represented by counsel, opposing parties frequently prefer to utilize personal service of legal documents to insure that the pro per party receives the notices. In addition to representing themselves, these lower income litigants must frequently work odd hours or multiple jobs to make ends meet. Due to the hectic work schedule of many pro per litigants, in addition to California's notoriously disagreeable traffic congestion, the standard window of time for personal service of notice and other papers on these parties may not be flexible enough to effectuate service.

To remedy the difficulties of serving notice at a party's home, this bill seeks to expand the window of time available for the service of notice by two hours in the evening. The alternative to expanding the window of time for service of notice from 8 a.m. to 6 p.m. to 8 a.m. to 8 p.m. would be to abandon personal service and instead serve the papers by mail or deliver to the clerk of the court. Given the disadvantages faced by pro per litigants, ensuring that notices are properly served on these parties is essential.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0003554

 THIRD READING  

Bill No: AB 2286

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/12/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 70-4, 4/23/18 - See last page for vote

SUBJECT:

SOURCE: California Association of Legal Support Professionals

DIGEST:

This bill provides that if service on a party is being made pursuant to Section 1011 of the Code of Civil Procedure, attempts of service upon the party may be made between the hours of 8 a.m. and 8 p.m.

ANALYSIS:

Existing law:

1. Provides that service may be personal, by delivery to the attorney on whom the service is required to be made. It provides that such service may also be made upon the attorney, at the attorney’s office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person having charge thereof. If there is no person in the office with whom the notice or papers may be left for purposes of this subdivision at the time service is to be effected, service may be made by leaving them between the hours of nine in the morning and five in the afternoon, in a conspicuous place in the office, or, if the attorney’s office is not open so as to admit of that service, then service may be made by leaving the notice or papers at the attorney’s residence, with some person of not less than 18 years of age, if the attorney’s residence is in the same county with his or her office, and, if the attorney’s residence is not known or is not in the same county with his or her office, or, being in the same county, it is not open, or a person 18 years of age or older cannot be found at the attorney’s residence, then service may be made by putting the notice or papers, enclosed in a sealed envelope, into the post office or a mail box, subpost office, substation, or mail chute or other like facility regularly maintained by the Government of the United States directed to the attorney at his or her office, if known, and otherwise to the attorney’s residence, if known. If neither the attorney’s office nor residence is known, service may be made by delivering the notice or papers to the address of the attorney or party of record as designated on the court papers, or by delivering the notice or papers to the clerk of the court, for the attorney. (Code Civ. Proc. Sec. 1011(a).)
2. Provides that service may be personal, by delivery to the party on whom the service is required to be made. It provides that such service must be made upon the party in the manner specifically provided in particular cases, or, if no specific provision is made, service may be made by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age. If, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the party’s residence, the notice or papers may be served by mail. If the party’s residence is not known, service may be made by delivering the notice or papers to the clerk of the court, for that party. (Code Civ. Proc. Sec. 1011(b).)
3. Provides that if service is made by electronic service, it shall be made pursuant to Section 1010.6 and applicable rules on electric service in the California Rules of Court. (Code Civ. Proc. Sec. 1011(c).)
4. Provides, through Rules of Court, whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented. (Rules of Court, Rule 1.21.)

This bill provides that if service on a party is being made pursuant to Section 1011 of the Code of Civil Procedure, attempts of service upon the party may be made between the hours of 8 a.m. and 8 p.m.

Background

Many statutes specifically prescribe the valid methods of service for particular contexts, thereby restricting how certain documents can properly be served. For instance, the summons and complaint initiating a civil action must be served by the plaintiff on the defendant in accordance with specific statutory service procedures. A summons can be served by personal delivery of a copy of the summons and complaint to the person to be served. However, the law also provides for various forms of substituted service.

For instance, in lieu of personal delivery, a summons and complaint can be served on a corporate or noncorporate entity by leaving copies in the entity’s office during usual office hours or, if no physical address is known, at the entity’s usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof. The serving party must then mail a copy of the summons and complaint by first-class mail to the entity to be served at the place where the documents were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing. If a copy of the summons and complaint cannot with “reasonable diligence” be personally delivered to an individual to be served, other approved manners of service are authorized.

Various other statutes provide for specific, authorized forms of service. Code of Civil Procedure Section 1010 et seq. provides various methods of effectuating service in civil litigation in California courts and the attendant procedures and timelines. Among these methods is personal service of the materials directly to the relevant party or attorney on whom service is required to be made. Personal service is a valid and reliable method of service that can be used in a variety of contexts. In relation to service on a party, Section 1011 provides that service may be personal, by delivery to the party on whom the service is required to be made, or service must be made in the manner specifically provided in the particular case.

Section 1011 also fills in the gap where no specific provision is otherwise made. It allows for service on the party by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age. If, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the party’s residence, the notice or papers may be served by mail. If the party’s residence is not known, service may be made by delivering the notice or papers to the clerk of the court, for that party.

This bill changes that time range to between the hours of 8 a.m. and 8 p.m.

Comments

The author states, “Expanding the permitted hours of service on a party at a residence will make it more likely that the party will receive actual notice of the motion or other document, rather than resorting to service by mail which is less reliable.”

Expanding the Options for Serving Parties Directly

The basic purpose of service requirements is to ensure a person receives notice when required by law. There are constitutional implications to service requirements as they affect the due process afforded parties to litigation. Concerns regarding adequate notice are heightened when personal service is not afforded, but some form of substituted service is utilized. “To be constitutionally sound the form of substituted service must be ‘reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard . . . [in order that] the traditional notions of fair play and substantial justice implicit in due process are satisfied.’” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416, quoting M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 768.)

Current law allows for service upon a party, if no specific provision otherwise controls, by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age. If, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the party’s residence, the notice or papers may be served by mail. If the party’s residence is not known, service may be made by delivering the notice or papers to the clerk of the court, for that party. (Code Civ. Proc. Sec. 1011(b).)

This bill provides that such service may be attempted between the hours of 8 a.m. and 8 p.m. Existing Rules of Court provide that whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented. (Rules of Court, Rule 1.21.) Therefore, the particular mode of service amended by this bill affects unrepresented parties. The stated intention is to ensure these unrepresented parties are receiving actual notice on a more reliable basis in civil litigation.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/13/18)

California Association of Legal Support Professionals (source)

OPPOSITION: (Verified 6/13/18)

None received

ASSEMBLY FLOOR: 70-4, 4/23/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Weber, Wood, Rendon

NOES: Travis Allen, Brough, Harper, Waldron

NO VOTE RECORDED: Gallagher, Cristina Garcia, Eduardo Garcia, Quirk

Prepared by:

6/15/18 11:16:04

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2286 (Author:Chen)

Version: April 9, 2018

Hearing Date: June 12, 2018

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Civil actions: service of notice or other paper

DESCRIPTION

This bill would provide that if service on a party is being made pursuant to Section 1011 of the Code of Civil Procedure, and a person 18 years of age or older cannot be found at the party’s residence upon an initial attempt at service between the hours of 8 a.m. and 6 p.m., subsequent attempts of service upon the party may be made between the hours of 7 a.m. and 9 p.m.

BACKGROUND

Many statutes specifically prescribe the valid methods of service for particular contexts, thereby restricting how certain documents can properly be served. For instance, the summons and complaint initiating a civil action must be served by the plaintiff on the defendant in accordance with specific statutory service procedures. A summons can be served by personal delivery of a copy of the summons and complaint to the person to be served. However, the law also provides for various forms of substituted service. For instance, in lieu of personal delivery, a summons and complaint can be served on a corporate or noncorporate entity by leaving copies in the entity’s office during usual office hours or, if no physical address is known, at the entity’s usual mailing address, other than a United States Postal Service (USPS) post office box, with the person who is apparently in charge thereof. The serving party must then mail a copy of the summons and complaint by first-class mail to the entity to be served at the place where the documents were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing. If a copy of the summons and complaint cannot with “reasonable diligence” be personally delivered to an individual to be served, other approved manners of service are authorized.

Various other statutes provide for specific, authorized forms of service. Code of Civil Procedure section 1010 et seq. provides various methods of effectuating service in civil litigation in California courts and the attendant procedures and timelines. Among these methods is personal service of the materials directly to the relevant party or attorney on whom service is required to be made. Personal service is a valid and reliable method of service that can be used in a variety of contexts. In relation to service on a party, Section 1011 provides that service may be personal, by delivery to the party on whom the service is required to be made, or service must be made in the manner specifically provided in the particular case.

Section 1011 also fills in the gap where no specific provision is otherwise made. It allows for service on the party by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age. If, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the party’s residence, the notice or papers may be served by mail. If the party’s residence is not known, service may be made by delivering the notice or papers to the clerk of the court, for that party.

This bill would provide that if an adult cannot be found at the party’s residence upon an initial attempt at service between the hours of 8 a.m. and 6 p.m., additional attempts of service upon the party may be made between the hours of 7 a.m. and 9 p.m.

CHANGES TO EXISTING LAW

Existing law provides that service may be personal, by delivery to the attorney on whom the service is required to be made. It provides that such service may also be made upon the attorney, at the attorney’s office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person having charge thereof. If there is no person in the office with whom the notice or papers may be left for purposes of this subdivision at the time service is to be effected, service may be made by leaving them between the hours of nine in the morning and five in the afternoon, in a conspicuous place in the office, or, if the attorney’s office is not open so as to admit of that service, then service may be made by leaving the notice or papers at the attorney’s residence, with some person of not less than 18 years of age, if the attorney’s residence is in the same county with his or her office, and, if the attorney’s residence is not known or is not in the same county with his or her office, or, being in the same county, it is not open, or a person 18 years of age or older cannot be found at the attorney’s residence, then service may be made by putting the notice or papers, enclosed in a sealed envelope, into the post office or a mail box, subpost office, substation, or mail chute or other like facility regularly maintained by the Government of the United States directed to the attorney at his or her office, if known, and otherwise to the attorney’s residence, if known. If neither the attorney’s office nor residence is known, service may be made by delivering the notice or papers to the address of the attorney or party of record as designated on the court papers, or by delivering the notice or papers to the clerk of the court, for the attorney. (Code Civ. Proc. Sec. 1011(a).)

Existing law provides that service may be personal, by delivery to the party on whom the service is required to be made. It provides that such service must be made upon the party in the manner specifically provided in particular cases, or, if no specific provision is made, service may be made by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age. If, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the party’s residence, the notice or papers may be served by mail. If the party’s residence is not known, service may be made by delivering the notice or papers to the clerk of the court, for that party. (Code Civ. Proc. Sec. 1011(b).)

Existing law further provides that if service is made by electronic service, it shall be made pursuant to Section 1010.6 and applicable rules on electric service in the California Rules of Court. (Code Civ. Proc. Sec. 1011(c).)

Existing Rules of Court provide, whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented. (Rules of Court, Rule 1.21.)

This bill would provide that if service on a party is being made pursuant to Section 1011 of the Code of Civil Procedure, and an adult cannot be found at the party’s residence upon an initial attempt at service between the hours of 8 a.m. and 6 p.m., subsequent attempts of service upon the party may be made between the hours of 7 a.m. and 9 p.m.

COMMENT

1. Stated need for the bill

According to the author:

The purpose of AB 2286 is to modestly expand the hours for the second attempt during which a party acting in pro per in a legal case may be served with routine notices after a case has commenced. Current law permits service on parties at residences, by mail if service at the residence is not successful, and by electronic service in some cases. Expanding the permitted hours of service on a party at a residence will make it more likely that the party will receive actual notice of the motion or other document, rather than resorting to service by mail which is less reliable.

2. Expanding the options for serving parties directly

The basic purpose of service requirements is to ensure a person receives notice when required by law. There are constitutional implications to service requirements as they affect the due process afforded parties to litigation. Concerns regarding adequate notice are heightened when personal service is not afforded, but some form of substituted service is utilized. “To be constitutionally sound the form of substituted service must be ‘reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard . . . [in order that] the traditional notions of fair play and substantial justice implicit in due process are satisfied.’” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416, quoting M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 768.)

Current law allows for service upon a party, if no specific provision otherwise controls, by leaving the notice or other paper at the party’s residence, between the hours of eight in the morning and six in the evening, with some person of not less than 18 years of age. If, at the time of attempted service between those hours, a person 18 years of age or older cannot be found at the party’s residence, the notice or papers may be served by mail. If the party’s residence is not known, service may be made by delivering the notice or papers to the clerk of the court, for that party. (Code Civ. Proc. Sec. 1011(b).)

This bill would provide that if service on a party is being made pursuant to Section 1011(b), and an adult cannot be found at the party’s residence upon an initial attempt at service between the hours of 8 a.m. and 6 p.m., subsequent attempts of service upon the party may be made between the hours of 7 a.m. and 9 p.m. Essentially, while an initial attempt at service at a party’s personal residence must still be made during the normal hours, additional attempts are authorized during a period extending an additional hour in the morning and three additional hours at night.

Existing Rules of Court provide that whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented. (Rules of Court, Rule 1.21.) Therefore, the particular mode of service amended by this bill affects unrepresented parties. The stated intention is to ensure these unrepresented parties are receiving actual notice on a more reliable basis in civil litigation. However, this would authorize process servers to possibly disrupt households well into the night. In order to more sufficiently balance the additional flexibility and increased likelihood of successfully serving a party at their residence with the additional intrusiveness of expanded hours, the author has agreed to amend the bill to allow for service on a party pursuant to Section 1011 upon an initial attempt at service between the hours of 8 a.m. and 8 p.m.:

Committee Amendment

Amend the bill to allow for service pursuant to Section 1011(b) between the hours of 8 a.m. and 8 p.m.

Support: None Known

Opposition: None Known

HISTORY

Source: California Association of Legal Support Professionals

Related Pending Legislation: None Known

Prior Legislation:

SB 543 (Morrell, Ch. 64, Stats. 2017) expanded the availability of personal service as a means for effectuating service in the civil litigation context, including for the service of applications for determination of good faith settlements, discovery, and the exchange of expert witness information.

AB 1093 (Chen, Ch. 129, Stats. 2017) provided that notwithstanding subdivision (b) of Section 415.20 of the Code of Civil Procedure, if the only address reasonably known for a person to be served is a private mailbox obtained through a commercial mail receiving agency (CMRA), service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the CMRA in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.

Prior Vote:

Assembly Floor (Ayes 70, Noes 4)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2286

Author:(Chen)

As Amended Ver:April 9, 2018

Majority vote

SUMMARY: Extends the hours provided for leaving notice or other papers with an adult at a party to litigation's home, in certain circumstances. Specifically, this bill:

1. Provides that the first attempt at serving of notice or other papers on a party at the party's home must occur between 8 a.m. to 6 p.m.
2. If the first attempt at service of notice or other papers is unsuccessful, a process server may serve the party between 7 a.m. and 9 p.m. on subsequent attempt or serve the party via United States (U.S.) Mail.

EXISTING LAW:

1. Provides that service of notice may be made upon the office of an attorney representing a party to a civil proceeding by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person. (Code of Civil Procedure Section 1101 (a).)
2. Provides that if a person is not present at the attorney's office to accept the service of the notice, service may be made by the notice or other papers in a conspicuous place, in an envelope or package clearly labeled to identify the attorney being served, between the hours of nine in the morning and five in the afternoon. (Id.)
3. Provides that if any attorney's office is not open to receive service, personal service may be made at the attorney's home, so long as it is in the same county as the attorney's office, with any person over 18 years of age. (Id.)
4. Provides that a party may be served a notice or other paper via electronic service if the party has expressly consented to receive electronic service. (Code of Civil Procedure 1010.6.)
5. Provides that a party to litigation may be served at their home between the hours of 8 a.m. and 6 p.m. If the party is not present, the notice or other papers may be left with a person 18 years of age or older. If no person is present, the notice and other papers may be mailed to the party or served upon the clerk of the court if the party's address is unknown. (Code of Civil Procedure Section 1101 (b).)

FISCAL EFFECT: None

COMMENTS: This bill seeks to expand the hours for serving notice and other papers upon a party to litigation when the notice cannot be provided to the person via their attorney or electronic delivery. The parties receiving service at home are frequently lower income litigants who cannot afford an attorney and must appear in court on a pro per basis. Because these parties are generally not represented by counsel, opposing parties frequently prefer to utilize personal service of legal documents to insure that the pro per party receives the notices. In addition to representing themselves, these lower income litigants must frequently work odd hours or multiple jobs to make ends meet. Due to the hectic work schedule of many pro per litigants, in addition to California's notoriously disagreeable traffic congestion, the standard window of time for personal service of notice and other papers on these parties may not be flexible enough to effectuate service.

To remedy the difficulties of serving notice at a party's home, this bill seeks to expand the window of time available for the service of notice by one hour in the morning and three hours in the evening, if the first attempt at service at a party's home fails. The alternative to expanding the window of time for service of notice from 8 a.m. to 6 p.m. to 7 a.m. to 9 p.m. would be to abandon personal service and instead serve the papers by mail or deliver to the clerk of the court. Given the disadvantages faced by pro per litigants, ensuring that notices are properly served on these parties is essential.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0002687

Date of Hearing: April 3, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2286

Author:(Chen) – As Introduced Ver:February 13, 2018

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: Civil actions: service of notice or other paper

KEY ISSUE: SHOULD THE HOURS for leaving a notice or other paperS at a party’s residence BE EXTENDED?

SYNOPSIS

As proposed to be amended, this non-controversial bill seeks to address the ongoing difficulties encountered by process servers, who are represented by the sponsor of this bill, seeking to serve notices or other papers on a litigant at the litigant’s home. Service in this manner is only required for a small percentage of notices that are served, typically when an indigent litigant is representing themselves pro per and does not have an attorney who can be served with notice in their place. To ensure that notices are properly communicated to this vulnerable population, personal service is preferred as it is usually faster and more reliable than mailing service of a notice or other papers. However, existing law limits the window of time when service of the notice or other papers can be effectuated at a party’s home to eight in the morning to six in the evening. Legal support professionals contend that this time window is too narrow to properly deliver service in light of a litigant’s work schedule, family obligations, and long commute times.

While personal service is more reliable, it is also more intrusive to the privacy of the person being served, especially when service must be effectuated at the party’s residence. As proposed to be amended, this bill seeks to balance the need to properly serve process on vulnerable litigants, while not unnecessarily intruding into these litigant’s lives. Recognizing that a litigant’s economic status should not add additional inconveniences, if possible, as proposed to be amended, this bill would require that a process server attempt service of a notice or other paper at a litigant’s home between the hours of 8 a.m. and 6 p.m., and then only upon failure of the first attempt, permits additional attempts at service to take place between the hours of 7 a.m. and 9 p.m. This bill has no known opposition.

SUMMARY: Extends the hours provided for leaving notice or other papers with an adult at a party’s home, in certain circumstances. Specifically, this bill:

1. Provides that the first attempt at serving of notice or other papers on a party at the party’s home must occur between 8 a.m. to 6 p.m.
2. If the first attempt at service of notice or other papers is unsuccessful, a process server may serve the party between 7 a.m. and 9 p.m. on subsequent attempt or serve the party via U.S. Mail.

EXISTING LAW:

1. Provides that service of notice may be made upon the office of an attorney representing a party to a civil proceeding by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person. (Code of Civil Procedure Section 1101 (a).)
2. Provides that if a person is not present at the attorney’s office to accept the service of the notice, service may be made by the notice or other papers in a conspicuous place, in an envelope or package clearly labeled to identify the attorney being served, between the hours of nine in the morning and five in the afternoon. (Id.)
3. Provides that if any attorney’s office is not open to receive service, personal service may be made at the attorney’s home, so long as it is in the same county as the attorney’s office, with any person over 18 years of age. (Id.)
4. Provides that a party may be served a notice or other paper via electronic service if the party has expressly consented to receive electronic service. (Code of Civil Procedure 1010.6.)
5. Provides that a party to litigation may be served at their home between the hours of eight in the morning and six in the evening. If the party is not present, the notice or other papers may be left with a person 18 years of age or older. If no person is present, the notice and other papers may be mailed to the party or served upon the clerk of the court if the party’s address is unknown. (Code of Civil Procedure Section 1101 (b).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill seeks to expand the hours for serving notice and other papers upon a party to litigation when the notice cannot be provided to the person via their attorney or electronic delivery. In support of this measure the author notes:

AB 2286…does not relate to documents which establish jurisdiction over the parties, such as summons’ and complaints. Rather, the [bill] establishes service of process options for routine notices and motions after the commencement of a case.

The problem with current law is that service of these documents at the residence of the party is limited to the hours of 8:00 am and 6:00 pm, when parties are frequently away from their residences at work. While current law permits notices to be mailed to the party if service cannot be accomplished at the residence, this is a less reliable method of service. Public policy would suggest that the better approach would be to modestly expand the hours of service at the party’s residence, permitting service between the hours of 7:00 am and 9:00 pm, rather than resorting to mail service

Indigent parties most likely to receive notices and other papers at home. The sponsor of this bill, the California Association of Legal Support Professionals, a statewide association of attorney service providers who serve process and perform other legal tasks, suggests that in their experience, the parties receiving service at home are frequently lower income litigants who cannot afford an attorney and must appear in court on a pro per basis. Because these parties are generally not represented by counsel, opposing parties frequently prefer to utilize personal service of legal documents to insure that the pro per party receives the notices. In addition to representing themselves, these lower income litigants must frequently work odd hours or multiple jobs to make ends meet. Due to the hectic work schedule of many pro per litigants, in addition to California’s notoriously disagreeable traffic congestion, the standard window of time for personal service of notice and other papers on these parties may not be flexible enough to effectuate service.

To remedy the difficulties of serving notice at a party’s home, this bill seeks to expand the window of time available for the service of notice by one hour in the morning and three hours in the evening. In justifying the expansion of the window for service of notice from 8 a.m. to 6 p.m. to a rather intrusive 7 a.m. to 9 p.m., the sponsor notes that the alternative to personal service is to use service by mail or service upon the clerk of the court. Furthermore, the author and sponsor note that the initial service of process that initiates litigation can be served upon a party at any time. Given the disadvantages faced by pro per litigants, ensuring that notices are properly served on these parties is essential.

Expansion of the time window for service of process at a party’s home may be intrusive to litigants. This bill proposes a significant expansion of the window of time for service of notice on litigants at their homes. Although on-demand goods delivery services like Amazon are conditioning Californians to accept early morning or late night interruptions for deliveries, permitting service of legal documents as late as 9 p.m. is quite intrusive on the party being served. Furthermore, service commencing at 7 a.m. can be disruptive to families or others who may have busy morning routines, as well as parties who work overnight shifts and must sleep in the early morning.

As proposed to be amended. Proposed amendments seek to strike a balance between the need to render service of legal notice and other papers on parties at their home, and those litigants right to avoid disturbance in the early morning or late evening. As proposed to be amended, this bill would require process servers to make, at minimum, one attempt at serving notice at a party’s home during normal business hours. The first attempt must be at the party’s home between the hours of 8 a.m. and 6 p.m., as provided by existing law. This would ensure that parties are not served at odd hours for no reason if they are, in fact, home during the day. Any additional attempts may, but are not required to, utilize the broader time period proposed by the author, allowing service to be made from 7 a.m. to 9 p.m., or by mail. The process server will retain the ability to serve the clerk of the court without attempting personal service in any case where there is not a home address for the party.

The amendments to subdivision (b) of Section 1011 of the Code of Civil Procedure, on page 2 of the bill read as follows:

(b) If upon a party, service shall be made in the manner specifically provided in particular cases, or, if no specific provision is made, service may be made by leaving the notice or other paper at the party’s residence, between the hours of 7 a.m. and 9 p.m., with some person of not less than 18 years of age.

(1) The first attempt of service upon a party shall be attempted between the hours of 8 a.m. and 6 p.m.

(2) If, at the time of the first attempted service as provided in paragraph (1) between those hours, a person 18 years of age or older cannot be found at the party’s residence, additional attempts of service upon a party may be attempted between the hours of 7 a.m. and 9 p.m., or the notice or papers may be served by mail.

(3) If the party’s residence is not known, the any attempt of service pursuant to this subdivision may be made by delivering the notice or papers to the clerk of the court, for that party.

(c) If service is made by electronic service, it shall be made pursuant to Section 1010.6 and applicable rules on electric service in the California Rules of Court.

ARGUMENTS IN SUPPORT: In support of this measure the California Association of Legal Support Professionals note:

To improve the chances of actual service and actual notice, AB 2286 merely proposes to expand the available hours of service at the residence to 7:00 am and 9:00 pm.

AB 2286 will make service of process on parties more reliable, thereby increasing the likelihood that parties will have actual notice of what is happening in their cases.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Legal Support Professionals (sponsor)

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334