2005 Updates to the RPS Guides
This is a list of code sections that have been amended or added that affect process servers in California. We are designating selected Judicial Council forms that are noteworthy. Appellate decisions from California, Ninth Circuit and other court have been identified. This list constitutes the 2005 Updates to The Registered Process Server's Guide to Service of Process in California, 3d Edition, published in September, 2005. The Registered Process Server's Guide to Service of Writs of Attachment and Writs of Execution, 2nd Edition was published in 2003. The 2004 - 2005 Cumulative Updates are available from PSI for $25.00. Cumulative updates are included with each book purchase.
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CODE SECTIONS California Laws Code of Civil Procedure
§ 116.770 A “legally emancipated minor” may now be a party to a Small Claims Action.
§§ 405.20; 405.22 Changes the word shall to may re Lis Pendens recording.
§ 416.40 Service of Unincorporated Association may be ordered to be made on a member of the association after showing that the designated agent for service cannot be found.
§ 706.034 Employer may add $.50 to the current $1.00 charge in responding to an Earnings Withholding Order. Each pay period an employer may now deduct $1.50.
§ 1005 The notice of motion of documents specified in the statute has changed from 21 days to 16 court days for. This will make calculating dates more cumbersome.
§§ 2016, et seq. All discovery statutes have been re-numbered.
Evidence Code
§ 1560 Limits records depositions to civil actions only.
Government Code
§ 8201 A six-hour course is required to become a Notary Public after July 1, 2005.
§ 8202 A Notary Public must determine identification of signer based upon satisfactory evidence. The Jurat wording must indicate that identification.
§ 26727 Increases Sheriff Keeper fees to $120.00, not to exceed $240.00 per 24 hours.
§ 26733.5 (Writ of Possession) Sheriff may charge $50.00 for each additional occupant evicted.
Penal Code
§ 1326 Criminal records may only produced directly to the court and may not be produced under Evidence Code § 1560.
Rules of Court The California Judicial Council adopted Rule 201.6, effective on January 1, 2005, requiring Drop Boxes for Filing between 8:30 AM and 4:00 PM when the court counter is closed during those times.
Local Rules San Francisco Superior Court is initiating mandatory E-filing in Asbestos cases.
Federal Laws IR 2004-139, Nov. 17, 2004 The 2005 Standard Mileage Rate established by the Internal Revenue Service has increased to $.40.5 per mile affecting witness fees for Federal Subpoenas.
FORMS
The latest change to the Proof of Service of Summons form (POS-010) was effective on July 1, 2004. It can be filled in and downloaded from their web site. You may save the proof of service you prepare if you have the full version of Adobe Acrobat.
The California Judicial Council also amended California Rule of Court § 982.9 regarding Computer-generated or typewritten forms of proof of service of summons and complaint, allowing Proofs of Service to be alternatively prepared on a computer.
A new Exemption from the Enforcement of Judgments form has been revised and updated, effective July 1, 2004, referring debtors to revised exemption amounts. This form is served on individual defendants and judgment debtors affected by attachments and levies.
Effective 4/1/04 Current Dollar Amounts of Exemptions from the Enforcement of Judgments form This for must be served on individual judgment debtors with the Exemption form Effective 7/1/04 Proof of Service of Summons Order to Show Cause and Temporary Restraining Order (CLETS) (Civil Harassment) Proof of Personal Service (Civil Harassment) Proof of Service by Mail (Civil Harassment) Order After Hearing on Petition for Injunction Prohibiting Civil Harassment (CLETS) Exemptions From the Enforcement of Judgments Income and Expense Declaration (Family Law) Notice of Entry of Judgment and Proof of Service by Mail (Governmental) Effective 1/1/05 Proof of Personal Service non-mandatory Proof of Service by Mail non-mandatory Proof of Service (all-purpose form) non-mandatory Notice and Acknowledgement of Receipt of Service Small Claims Plaintiff’s Claim Small Claims Proof of Service
All of these forms may be downloaded or filled in on-line at the California Judicial Council web site. |
APPELLATE DECISIONS CASE LAW
California State Supreme Court
Kulshrestha v. First Union Commercial Corp. 33 Cal.4th 601, 93 P.3d 386, 15 Cal.Rptr.3d 793, 4 Cal. Daily Op. Serv. 6402, 2004 Daily Journal D.A.R. 8718, Cal., Jul 19, 2004 Declaration executed out of state is inadmissible unless it invokes California law.
California State Appellate Courts
Korea Water Resources Corp. v. Lee, 115 Cal.App.4th 389, 8 Cal.Rptr.3d 853, 4 Cal. Daily Op. Serv. 921, 2004 Daily Journal D.A.R. 1164, Cal.App. 4 Dist., Jan 26, 2004 Because foreign country’s judgment is not conclusive, superior court properly discharged attachment against defendant
CIT Group/Equipment Financing v. Superior DVD, Inc. 115 Cal.App.4th 537, 8 Cal.Rptr.3d 927, 4 Cal. Daily Op. Serv. 974, 2004 Daily Journal D.A.R. 1187, Cal.App. 1 Dist., Jan 30, 2004 Right to Attach order is Proper because computation of damages is ascertainable.
Pacific Decisions Sciences Corp. v. Superior Court 121 Cal.App.4th 1100, 18 Cal.Rptr.3d 104, 4 Cal. Daily Op. Serv. 7868, 2004 Daily Journal D.A.R. 10,596, Cal.App. 4 Dist., Aug 25, 2004 California court that directed Sheriff to levy property in Florida was unauthorized
Gonzalez v. County of Los Angeles 122 Cal.App.4th 1124, 19 Cal.Rptr.3d 381, 4 Cal. Daily Op. Serv. 8975, 2004 Daily Journal D.A.R. 12,228, Cal.App. 2 Dist., Sep 30, 2004 “Five-Year Statute deadline to bring suit to trial is extended pending mediation in the last six months of limitation period”
Renoir v. Redstar Corp. 123 Cal.App.4th 1145, 20 Cal.Rptr.3d 603, 4 Cal. Daily Op. Serv. 9924, 2004 Daily Journal D.A.R. 13,524, Cal.App. 2 Dist., Nov 03, 2004 Plaintiff’s failure to serve summons on defendant cannot enforce foreign money judgment
Marriage of Wilcox --- Cal.Rptr.3d ----, 2004 WL 2698430, 2004 Daily Journal D.A.R. 14,188, Cal.App. 4 Dist., Nov 29, 2004 Family Code does not subject money judgments to 10 year time limits for renewals.
US Court Appeals, 9th Circuit
Brockmeyer v. May 361 F.3d 1222, 58 Fed.R.Serv.3d 18, 4 Cal. Daily Op. Serv. 2480, 2004 Daily Journal D.A.R. 3646, 9th Cir.(Cal.), Mar 24, 2004 Service by Mail on English Defendant via Regular Mail is valid under Hague Convention.
Brockmeyer v. May 383 F.3d 798, 2004 A.M.C. 2269, 4 Cal. Daily Op. Serv. 8005, 2004 Daily Journal D.A.R. 10,802, 9th Cir.(Cal.), Aug 31, 2004 Default Judgment cannot stand because international service was defective.
Ministry of Defense and Support for Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems Inc. 385 F.3d 1206, 4 Cal. Daily Op. Serv. 9078, 2004 Daily Journal D.A.R. 12,413, 9th Cir.(Cal.), Oct 07, 2004 Iran’s Ministry of defense is not Immunity from having Judgment attached
In re Focus Media, Inc. 387 F.3d 1077, 43 Bankr.Ct.Dec. 227, Bankr. L. Rep. P 80,189, 4 Cal. Daily Op. Serv. 9823, 2004 Daily Journal D.A.R. 13,434, 9th Cir.(Cal.), Nov 02, 2004 Lawyer representing client in Bankruptcy matter may receive service of process as “implied agent”
In re Focus Media, Inc. --- F.3d ----, 2004 WL 2590496, 4 Cal. Daily Op. Serv. 10,181, 2004 Daily Journal D.A.R. 13,866, 9th Cir.(Cal.), Nov 16, 2004 Order and Amended Opinion
Rubin v. Pringle (11/2/04) ____Fed. 3d _______ Lawyer representing client in Bankruptcy matter may receive service of process as “implied agent”
US Bankruptcy Court Beneficial California Inc. v. Villar (10/20/04) Debtor’s service of motion on Creditor’s PO Box to avoid judicial lien does not comply with Bankruptcy Code |
© Tony Klein 2004-2005