The following is an article excerpted from The PSI Newsletter, Issue 2.3, published by the Process Server Institute.
© Tony Klein 1998 - 2005
Frequently Asked Questions about the Registered Process Server Law
Process servers, private investigators, lawyers, university students and County Clerks have posed the following questions to PSI since the new Registered Process Server Law went into effect (Business & Professions Code § 22350, et seq.) This is intended to explain how the law affects process servers, the County Clerks, and the legal community. It is not intended to serve as legal advice.
|Can I post $2000.00 cash instead of a bond?||Yes. Effective in 2000, you may post cash or a money order for $2000.00 instead of the bond. Since the cash amount replaces a performance bond, and the bond acts as insurance for a term certain, and a claim could come after the "term", some counties may not be immediately release the money upon the expiration of the term of the registration.|
|How much does it cost to register as a process server?||The fee to the County Clerk varies by county but is generally about $100 ($232 in Los Angeles because all fees are bundled together.) The felony check is $56. The fingerprints are between $10 and $30. Passport style photos are about $5 - $10. A process server bond is $49.|
|I'm a licensed private investigator. Does the law require me to register as a process server?||
No. The new law did not affect the exemption from registering as a process server. The law continues to exempt a sheriff, marshal, or government employee who is acting within the course and scope of his or her employment, lawyers or their employees, licensed private investigators or their employees, and anyone specially appointed by the court.
However, being "exempt from registration" does not mean "registered as a process server." Several laws require that a "registered process server" serve certain documents. Being exempt from registration only permits service of summonses, subpoenas, notices and small claims documents without breaking the law.
|I'm a registered professional photocopier and serve only subpoenas for records. Do I have to register?||No. The law was amended in 1999 that added an exemption for photocopiers who serve only subpoenas for records. The law requires registration only if the photocopier serves other types of documents.|
|Do I have to submit finger print cards every time I register?||
A fingerprint card (or "Live Scan" certificate) must be submitted with the initial application. The initial application is the first time a registrant registers under the new law.
Some County Clerks did not sent a "Contract for Subsequent Notification of Arrest" to the DOJ and were not notified after the initial background check was done. Some sent them but the documents were lost or not processed by the DOJ. Process servers who initially registered in 1998 and 1999 will have to submit another set of fingerprint cards.
The amended law mandates in 2000 that the County Clerk file the "Contract" form with the DOJ and requires a renewing process server to submit another set of fingerprints if the contract was not in place at the time of the initial registration.
|How does this law benefit me?||
The law benefits process servers because it will establish a heightened legal standard for service. Making more than 10 services by a non-registered server in a calendar year is a misdemeanor. Companies that casually offer process serving with other types of deliveries and charge a fraction of the statutory rate will be mandated to register their process servers or use registered process servers.
Many law firms are checking to verify that their process server is complying with the new law and are requiring that a registered server serve their documents. Perhaps the most common type of service of a large law firm, noticing opposing counsel service, is considered process and may not be served by unregistered messengers.
Services made by unregistered process servers might be subject to additional challenge if the person served makes a motion to quash service. Proof of service of a summons must show the registration number of the process server. Without a registration number, the proof of service would indicate that the documents were served by an unregistered process server.
The legal status of a registered process server provides further legal protection and authority. Marketing this status is up to the process server. The court and the law already recognize the requirement and standing. Some documents may only be served by a registered process server, namely, a writ of attachment, writ of execution, earnings withholding order and a pre-judgment claim of right to possession in an unlawful detainer action (RPSG 4). The law adds summons, subpoenas, and notices to opposition counsel to the list. A non-registered process server may serve an order of examination (OEX or ORAP), but if the judgment debtor does not show up to the court hearing the judge may not issue an order for contempt of court (RSPG 43).
An assault on an RPS is a felony (Penal Code § 243). An RPS has a limited exemption from trespass (Penal Code § 602(8)(c)(3)). A proof of service signed by an RPS has rebutable presumption status (Evidence Code § 647), and an RPS may gain access to a gated community for service (CCP § 415.21). And an RPS’s fees for service of process, stake out, and locating the person to be served are recoverable costs (CCP § 1033.5).
|I run a small business in a remote area. If I register all of our process servers, it will cost over $1000.00. How can I afford to comply with the new law?||
Since the cost of registering a process server is a minimum $240.00, it can be a significant expense. If the process server is an independent contractor, he or she should already be registered. If not, he or she must pay for their own registration. If they don't register, they are not independent contractors. They are employees and a company must treat them as employees by taking deductions and covering them under a workers' compensation policy.
Paying for the registration of an employee, especially a new employee who may stay only a couple of months, could potentially result in a significant loss before the company finds the right person. It could make hiring more difficult. It certainly will demonstrate the need to develop the art of hiring a long-term employee instead of just filling the position with a "body". It may also require the company to hire process servers who are already registered or use registered servers as independent contractors.
Many companies have been creative about this. Companies may consider the concept of forming a pool of registered process servers to draw upon in an "as needed" basis. Some may pay for the registration initially and, as a condition of employment, deduct the amount incrementally over the course of several pay periods. If the employee stays for six months the company could refund it. There is no ability for the company to cancel a registration of a departing employee. There may be a deductible pro-rated tax loss for the unused portion a company pays for the cost of a registration.
|Where do I get fingerprinted?||Some police departments or businesses that cater to immigration or take passport photos may also provide a fingerprint service. Some notaries public and Commercial Mail Receiving Agencies (such as a Mailbox, Etc.) offer this as an additional service. Expect to pay from $10 to $30 for 2 cards. The National Notary Association can be reached at 800/876-6827 (http://www.nationalnotary.org/). They sell a fingerprinting kit and a manual ($175 and $20, respectively) on how to perform the service. The proper fingerprint cards are a "BID-7" and "F-258" card. "Two "F-258" card may be used. Many law enforcement agencies use "Live Scan" machines to fingerprint electronically.|
|What do I need to get a Registered Process Server card? Do I need one?||The County Clerk must issue an RPS an identification card and may charge a reasonable fee, usually about $10 (except Los Angeles). To get one the RPS should bring a passport style photo so that it may be laminated into a plastic seal. Some counties (Santa Clara, Los Angeles and Orange) take the picture at their office. San Mateo requires two photos. Check with the clerk before you arrive. An RPS does not necessarily need one, but presentation to a guard for access at a gated community is far more convenient when the RPS is asked to produce evidence of registration.|
|Where does the fingerprint card go?||
The County Clerk submits both fingerprint cards to the California Department of Justice (DOJ) with a $56.00 processing fee that the registrant pays. The DOJ keeps one to conduct a felony background check and forwards the remaining card the Federal Bureau of Investigation. Each agency conducts the check and will send a report to the County Clerk. It is generally a ten-year search and takes about 1 to 2 months. "Live Scan" prints are linked to the DOJ and FBI digitally and electronically.
The DOJ has specific bureaucratic procedures for submitting the prints, fees, etc, outlined in a DOJ "Applicant Fingerprint Clearance Manual". The amended law effective in 2000 requires the County Clerk to file with the DOJ a "Contract for Subsequent Arrest Notification" to direct the DOJ to contact the Clerk of any arrests after the initial check. The form is in that manual.
|I must register as a corporation. Do all corporate officers need to submit fingerprint cards?||The law seems to imply that all corporate officers must sign the certificate and submit a finger print card for each officer.|
|Do all partners have to submit fingerprint cards if I register a partnership?||The law seems to imply that all partners must submit fingerprint cards. The purpose is to initiate a background check on all principals in the business.|
|I am fingerprinted already as a Private Investigator, Notary Public, etc. Do I need to do it again?||Yes. This initiates another background check. The law requires it. The background check designates the County Clerk as the agency to which the Department of Justice and FBI provides "subsequent address notification" if the applicant is convicted of a felony.|
|My county issues RPS ID cards to our employees. Will this continue?||The law never allowed this practice. The new law still only permits the issuance of an ID card to a registered process server. The practice may have been adopted from the issuing of cards to employees of registered professional photocopiers.|
|I have been a resident for less than one year. Can I register?||This has been a requirement since 1971 and has not changed with the new law. Corporations and partnerships must also be in existence for a year prior to registering as a process server. However, if the officer or partner has been individually registered, he or she may register the company because of the pre-existing registration.|
|I had a DUI in 1973. Can I still register as a process server?||
The registrant must sign a statement that he or she has not been convicted of a felony. The law has evolved regarding felony status and the restrictions placed upon a person making a living. The factors the court could consider would be the time of the conviction, the severity of the felony, and whether the felony was one that related to the profession. For instance, a DUI or drug charge might not relate to process serving in the same way as it would for a person applying to be an airline pilot. A felony for fraud or perjury may have a more significant and direct impact to a process server.
The fact that a person had been convicted of a felony is a question on the Certificate for Registration. Some persons who have had felonies expunged were told that they can answer no to the question. Those registrants may now file the certificate with a copy of the certificate of rehabilitation, expungement, or pardon.
If a County Clerk is advised that the registrant is a convicted felon, an amendment effected in 2000 requires the registrant to maintain the registration and produce a certificate of rehabilitation, expungement, or pardon from the court where the felony was rendered. The process begins by filling out a form to submit to the felon's probation officer. The probation officer reports to the presiding judge of the county where the process server applies and the judge in the registering county rules on whether the person may remain registered.
If a convicted felon lies on the Certificate stating that he or she has not been convicted, a negative DOJ or FBI report would put the registrant in a position of having to explain, "I was a felon 20 years ago but today I'm a liar."
An amendment effective in 2000 authorizes the Court to issue and serve an order to show cause re contempt upon any person who fails to surrender an RPS ID card after notice of revocation.
A registered process must certify that he or she has not been convicted of a felony. Otherwise, a Pardon or Certificate of Rehabilitation must be obtained from the court. This Board of Prison Terms' link, How to Apply for a Pardon, has some information but it moves ever few months.
|When I send a paper to a process server in another area, does that server need to sign a contract with me as an independent contractor ?||
The registrant shall not allow a process server sign a proof of service as an independent contractor unless "the independent contractor is performing pursuant to a written independent contractor agreement with the registrant". The mandate was intended to relate to a registrant company or individual contracting with another process server directly, especially when the relationship is continuous. The law doesn't distinguish it from situations involving registrants contracting from distant cities and probably would not apply. A business in another city, or the server serving the process, is clearly not an employee of the registrant and should not be precluded from signing the proof as an independent contractor.
If a process server sends a contract for the server to sign, the agency and the process server should both sign the contract because both have an "expectation of specific compensation ... directly attributable to the service of process".
|What is the law about independent contractor process servers signing a proof of service?||
The following language defines independent
contractor process server status:
If the process server does not meet the criteria he or she must be sign the proof of service as an employee.
The agency and the contractor should review recently enacted tax regulations that governs process servers. You may obtain a copy from PSI by sending a SASE.
|Can I file a proof of service without the process server's number? Who is ever going to know?||
The law requires that any proof of service signed by an independent contractor bear the county of registration and number of both the process server and the registrant company. This may also require three registration numbers if the service was sent to another agency; the registration numbers of the sending agency, the receiving and serving agency and the process server. All are involved in the service for compensation.
Enforcement of the provisions of the new law will not be done by any one agency. The court clerks will not check or reject the proofs of service for filing. The district attorney's office will not be pulling files for violations of the new law. The person served could check if he or she is looking for a way to challenge service. And the attorney or party who sends the assignment to a process server might question the validity of service when the proof is returned to them.
© 2004 Tony Klein Process Server Institute 667 Folsom Street, 2d Floor San Francisco, CA 94107 415/495-3850 Fax: 415/495-8730 www.psinstitute.com/ email@example.com
Publisher of The Registered Process Server's Guide to Service of Process in California and The PSI Newsletter.