What can you do when a debtor resides in some gated neighborhood that uses a gate that uses wireless passkeys, or lives within a million dollar house in a gated community having a 24-hour guard station? if you need to have the judgment debtor served with a debtor examination? Any answer varies depending on the state, the particular situation, and the process server. In this article, this subject is highlighted mostly from the perspective of a process server.
This article is my opinion and is not, a legal opinion. I am the judgment matchmaking expert, and not an attorney. When you need a strategy to use or legal advice, please retain an attorney.
Currently, in California, Code of Civil Procedure 415.21 reads:
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.
California’s CCP 415.21 means a registered process server may lawfully go inside any locked neighborhood when there is one or more guards stationed there. One issue is, what do you do when there is no security guard, because the locking gate is completely automated with wireless passkeys? Such a circumstance may need some legally “muddy” strategies, such as:
1) If somebody starts to open a gate or garage door to a condo structure or a locked neighborhood, you might follow quickly, and you may slip in; and let’s hope you will later be able to get out. Wait nearby inside your vehicle, until there is a line of two or three cars entering. When the locking gate opens for them, try to slip in at the end of the line.
2) In a complex having a locked security door, you may stay by a door and wait until you see someone leaving or entering the complex, and ask for their permission to enter.
3) One might attempt to walk to the debtor’s residence, using another route.
In California, when a guard controls the entry gate, Code of Civil Procedure 415.21 will apply; and this brings up other concerns. There is no legal requirement that says you must share with the a guard which particular person is being served, only to display the guard the valid ID and the legal paperwork. However, there also seems to not be any law that prevents a security guard from asking you.
Despite what CCP 415.21 says, if a registered process server is not a Sheriff; some security guards will demand to know who is being served before they will permit access. Certain guards, particularly when they’re friendly with a judgment debtor; may alert them that they are about to get served; however most won’t. When the debtor is notified, they will be successful in avoiding being served.
Some guards might contact HQ for verification on “how to deal with this circumstance”. Occasionally headquarters orders the guard to allow a process server in, then HQ phones the debtor and warns them. Most often, this is not a problem; although it occurs on occasion, especially if they know a debtor, or made an arrangement with them.
The potential risk of tipping off the judgment debtor is avoided if you do not tell guard the person that is being served. When you ask them, the majority of guards will tell you if they’ll tip off a debtor, and most of them don’t. What do you do when you do not want to take a chance on telling the guard; and they refuse to grant you access unless you tell them? There may not be an easy solution, although these ideas might work:
1) Politely remind the security guard about CCP 415.21, and give them a copy of it.
2) Show your process serving ID, and then get that’s security guard’s full name (make sure they notice when you write it down), and document the time and day in front of them.
3) Within some counties, a Sheriff might be willing and authorized to arrest the guard for interfering with the service of a lawful subpoena; however do not threaten the guard by telling him that. Courteously inform the security guard that they may be held liable for obstructing justice, if they refuse to permit the service of a court-ordered subpoena, or tip off a judgment debtor of the upcoming serve.
If a security guard allows you through without needing to specify which resident is being served, thank them. When the guard won’t budge, let that be OK, and tell them the identity of the debtor is.
When the service then fails as they tipped off that debtor, you’ll need to try again later. Start by first trying to talk with headquarters, and if that doesn’t work out, and then perhaps consider lodging a complaint with your Sheriff, or perhaps even start a lawsuit against that security guard. Another way to handle this situation is to try to arrange things with another process server, for clever actions like attempting to cover several entry points at the same time, watching for when the judgment debtor goes through the gate, etc.