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PROCESS SERVERS

Responding to process servers is often a problem for associations with employees stationed at the entry gate of a homeowner association or at the front desk of a condominium highrise. Some associations simply throw away legal documents which have been "dropped" in their laps even though the documents are intended for a resident. This can create liability for the association if the resident suffers adverse consequences as a result of the association's failure to forward the documents.

Authorized Personnel. As provided for in Section 415.21 of the Civil Code, associations must allow process servers onto the property if they identify the person they intend to serve, display a driver's license or other identification, and provide evidence that they are a:

  • county sheriff,
  • marshal,
  • registered process server, or
  • licensed private investigator.

Substitute Service. If an association is gated and has a manned guard gate, substitute served on the guard may be appropriate. In Bein v. Brechtel-Jochim, a process server made three separate attempts to serve a party at their residence. Each time, the gate guard denied access. The court held that substitute service was appropriate. This does not apply to associations with unmanned security systems. To qualify, the substitute services must be on a guard.

Sample Policy. As provided for in Civil Code § 415.21, process servers shall have access to the property for the purpose of serving legal papers on residents. To that end, the following policy has been adopted by the Board of Directors:

  1. Identification of Process Server. Before being allowed entry, a process server must: (i) identify the person he/she intends to serve, (ii) display a driver's license or other identification, and (iii) provide evidence showing that he/she is a Sheriff, Marshal, registered process server or licensed private investigator.
  2. Hours of Service. The hours during which a process server may enter the property shall be 7:00 a.m. to 11:00 p.m.
  3. Notification of Resident. Security will call the resident whenever a process server has been given entry. This is so the resident does not become frightened by an unannounced stranger knocking on their door and serving them with papers. In keeping with the statutory provision, the Association will let the process server onto the property even if the resident demands otherwise. Also, Security will notify the resident even if the process server demands the resident not be notified.
  4. Escorting Process Server. Providing access to a process server does not mean he/she is free to roam the property. Depending on the availability of personnel, it will be the Association's policy to escort the process server directly to the resident's door. If the resident does not answer the door, the process server will then be escorted off the property
  5. No Offer to Accept Service. If the process server is not successful in serving the resident, the Association's personnel will not offer to accept the papers on behalf of the resident. If the process server tries to give the papers to the employee, they will be refused.
  6. Documents Forwarded to Resident. If, despite the Association's refusal to accept the papers, the process server drops the papers on the ground in front of the employee, the papers will be mailed to the resident along with a letter by first class mail. A copy of the letter and the papers will then be put in the resident's file. The Association will take no position regarding the validity of the attempt to substitute service on the Association. However, the documents will be forwarded to the resident so as not to impair the resident's rights. The resident can dispute with the court the validity of the service.

Sample Letter. Following is a sample letter when a subpoena is drop-served on a security guard. 

Resident's name
<address>

      Re:     Process Server

Dear Resident:

 A process server attempted to serve you with legal documents today. Upon leaving the property the process server insisted on leaving the enclosed documents. The Association refused the papers but the process server left them nonetheless.

The Association takes no position regarding the validity of the substituted service. However, when papers are left with us, they are forwarded to the resident so as not to impair anyone's rights. You should review the enclosed documents with your attorney and take appropriate action.

Very truly yours,

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC