Service of Process: Gated Communities Beware

As most litigators will tell you, serving a civil lawsuit on a defendant can often be a challenging task.  Specifically, defendants, especially when they know that they may be the subject of a lawsuit will go to great lengths to attempt to avoid service of process of the Summons and Complaint.  Until the Summons and Complaint is served upon a defendant, the Complaint is not effective upon them and they are not yet subject to the Court’s jurisdiction.  Notwithstanding the validity of a plaintiff’s complaint, the action does not have traction until it is properly served upon the defendant.

In a gated community or high rise condominium project with a front desk staff/security the issue of service of a complaint has historically been more challenging.  However, with the recent signage by Governor Brown of Assembly Bill 1720, the extent of who is allowed to enter a gated community/high rise condominium for purposes of service of process has been expanded.

Specifically, Code of Civil Procedure Section 415.21 pertains to access to gated communities to conduct service of process.  This provision states as follows:

“A.       Notwithstanding any other provision of law, any person shall be granted access to a gated community for a reasonable period of time for the purpose of performing lawful service of process, upon identifying to the guard the person or persons to be served, and upon displaying a current driver’s license or other identification, and one of the following:

1.         A badge or other confirmation that the individual in acting in his or her capacity as a representative of a County Sheriff or Marshall.

2.         Evidence of current registration as a process server.

B.        This section shall only apply to a gated community which is staffed at the time service of process is attempted by a guard or other security personnel assigned to control access to the community.”

The Code of Civil Procedure Section 415.21 requires that a gated community, which would include security staffed condominium building, to allow access to a representative of a County Sheriff, Marshall or currently registered process server for the purpose of performing lawful service of process.  AB1720 expands CCP § 415.21 to also include state licensed private investigators equal access to gated communities for service of process.

It should also be understood that Substituted Service can also be effectuated upon an entry guard at a gated community pursuant to Code of Civil Procedure Section 415.20.

Specifically, CCP § 415.20 pertains to substituted service of process and generally states as follows:

“A.       In lieu of personal delivery of a copy of the Summons and Complaint to the person to be served, a Summons may be served by leaving a copy of the Summons and Complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service Post Office Box, with a person who is apparently in charge thereof, and by thereafter mailing a copy of the Summons and Complaint by First Class Mail, postage prepaid to the person to be served at the place where a copy of the Summons and Complaint were left.  When service is effective 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 tenth day after the mailing.

B.        If a copy of the Summons and Complaint cannot with reasonable diligence be personally delivered to the person to be served, a Summons may be served by leaving a copy of the Summons and Complaint at the persons dwelling house, usual place of abode, usual place of business or usual mailing address other than United States Postal Service Post Office Box, in the presence of a competent member of the household or person apparently in charge of his or her office, place of business, or usual mailing address, other than a United States Postal Service Post Office Box, with a person at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the Summons and Complaint by First Class Mail, postage prepaid to the person to be served at the place where a copy of the Summons and Complaint were left.  Service of a Summons in this manner is deemed complete on the tenth day after mailing.”

In the case of Bein v. Brechtel-Jockim Group (1992), the California Court of Appeals held that service upon a entry guard at a gated community satisfies the requirements for substituted service as required by CCP § 415.20.  Basically, the Court held that though litigants are entitled to select their place of residency, including within gated communities, that by living in such gated communities individuals should not be able to avoid who may sue or serve them by attempting to deny them physical access to the property.  As such, the Court stated that if a process server has made good faith attempts to personally serve a litigant in a gated community but has been unsuccessful, substituted service on the residential gate guard is appropriate under CCP § 415.20.

What does this all mean for gated communities or high rise condominiums with security personnel?  In a nutshell, the guard at the security gate must allow the “process server” reasonable access to the community for the purposes of attempting to serve the Summons and Complaint.  The security guard is entitled to notify the member/litigant that a process server has entered the community; however, the security guard should not attempt to interfere in any way with the actual service of process.  If the community so chooses, it is also allowable for the security guard to escort the process server to the residence or home of the member/litigant and then to escort that person off after either service has been effectuated or failed.

In addition, the security guard should not voluntarily agree to “accept service” of the Summons and Complaint from the process server.  However, if the process server does in fact hand the Summons and Complaint to that individual then, pursuant to the Bein case, this may very well constitute substituted service on the member/litigant.  In such instances, the security guard should ensure that the served documents are immediately provided to the member/litigant since, once substituted service has been effectuated, the time frame commences for the member/litigant to respond to the Complaint (10 days for substituted service, plus 30 days for a response).  At that point it will be up to the member/litigant to evaluate whether or not they wish to challenge the effectiveness of “service”.

Overall, it is important for managers of gated communities and high rise condominium associations to understand the authority of “process servers” to gain reasonable access within the community for the stated purpose of service, as well as to understand what steps need to be taken immediately if substituted service has ostensibly been effectuated.