What if your judgment debtor lives in a gated community that uses a wireless passkey automatic locking gate, or lives in a million dollar house in a gated community with a 24-hour guard station? What if you need to get your debtor served for a judgment debtor examination? The answer depends on which state, the situation, and the process server. In this article, this topic is discussed mostly from the perspective of a process server.
This article is my opinion based upon my experience in California, and not legal advice. I am the judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.
Currently, in California, CCP 415.21 states (As of January 1, 2015, CCP 415.21 has removed the requirement for a process server and/or a private investigator to identify to the guard the person who is being served):
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 or service of a subpoena, 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 is acting in his or her capacity as a representative of a county sheriff or marshal.
(2) Evidence of current registration as a process server pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code.
(B) This section shall only apply to a gated community that is staffed at the time service of process is attempted by a guard or other security personnel assigned to control access to the community.
In California, CCP 415.21 means a process server may legally get access inside a gated community if there is a guard stationed there. The first issue is, what if there is no guard, because the system is totally automated with wireless passkeys? This situation may require some legally “fuzzy” tactics, including:
1) If someone opens the gate or garage door to an apartment building or a gated community, you could quickly follow, and you might be able to get in; and hopefully can later get out. Wait nearby in your car, until there is a line of two or three cars entering. After the gate opens for them, try to slip in at the end of the line.
2) In a building with a security door, you might stand near the door and wait until you see someone leaving the building, and ask for their permission to enter.
3) You could try to walk to the judgment debtor’s residence, using another non-blocked route.
In California, when guard(s) control the entry gate, CCP 415.21 applies; and that brings up other issues. There is no legal requirement to tell a guard which occupant is getting served, only to show the guard your proper identification and the court-endorsed subpoena. However, there also seems to be no law that prevents a guard from asking you.
No matter what CCP 415.21 states, when the process server is not a Sheriff; some security guards will insist on knowing who is getting served before they will allow access. Some guards, especially when they are friendly with the judgment debtor; might tip them off that they are about to be served; although most will not. If the debtor gets notified, they will be able to avoid getting served.
Some guards might call headquarters for verification on “how to deal with this issue”. Sometimes headquarters tells guards to let the process server in, then headquarters calls the debtor and warns them. Usually, this is not a problem; yet it happens sometimes, especially when they know the debtor.
The risk of tipping off the debtor is avoided by not telling the guard who is getting served. If you ask them, most guards will tell you if they will tip off the resident, and most do not. What do you do if you do not want to risk telling the guard; and they refuse to give you access unless you tell them? There might not be an easy solution, although these ideas might work: 1) Politely remind the guard about CCP 415.21, and give them a copy of it.
2) Show your process server identification, and get the guard’s name (making a show of writing it down), and document the time and day in front of them.
3) In some counties, the Sheriff may be authorized and willing to cite or arrest a security guard for interfering with the service of a court-ordered subpoena; however do not threaten a guard with that. Politely tell the guard they may be liable for obstruction of justice, if they refuse to allow the service of a court-ordered subpoena, or notice the debtor of the pending serve attempt.
If the guard lets you in without having to say who is getting served, thank them. If the guard will not budge, let that be OK, and tell them who the debtor is.
If the service then fails because they tipped off the debtor, you will need to try again later. Start by first trying to communicate with headquarters, and if that does not work, then perhaps consider filing a complaint with the Sheriff, or perhaps even begin a lawsuit against the guard. Another way to go is to attempt to coordinate things with another process server, and do creative things such as attempting to cover multiple entry gates at the same time and watching when the debtor leaves, etc.