Court Rules – Process Server Institute

New Policy for 3-Day Notice Services?

February 24, 2020 PSIAdmin CA Service Laws, CCP 1162, Court Rules, Landlord Tenant Law

Note: See 2/27/20 Update here: https://psinstitute.com/new-policy-for-3-day-notice-services-update/

There is a new interpretation changing the effective service date when deemed complete after a 3-day notice is subserved or posted. It may be finding its way to a court near you.

The California Judicial Council has apparently sent all California courts a new directive about extending that date by 10 days. This directive, which is morphing into policy, is posted on the Judicial Council’s website here:

https://www.courts.ca.gov/27723.htm

This new policy is beginning to be adopted by courts in the bay area. Highlighted are the parts that add 10 days to a subserved or posted notice. The courts that are adopting this policy will not allow the unlawful detainer case to be filed unless the service is complete.

It is not uncommon for the Judicial Council to write directives for self-represented litigants in their “Self-Help” pages. They cover several legal topics. They create forms explaining procedural requirements, such as a small claims form entitled How to Serve a Business or Public Entity (which is reasonably accurate), and how to fill out a proof of service. There are several family law topics that are posted on their website.

But this explanation on how to serve a 3-day notice is flawed in so many ways.

The issue of when service is deemed complete after subserving or posting a notice has been to the appellate courts on several occasions in the past 70+ years. The issue has mainly focused on whether the mailing should be extended 5 days, similar to the extensions for mailing a notice to an opposing party in litigation under CCP sec. 1013. That issue has been repeatedly rejected for the service of a 3-day notice, noting that the 3-day notice is a pre-litigation document, the unlawful detainer action is a summary proceeding where time is of the essence, and that service must be made that strictly complies with the requirements in Unlawful Detainer Act.

It has NEVER been 10 days. It is for service of a summons, but never a 3-day notice.

Furthermore, not only are courts following this. Pro per or pro se litigants or non-professional process servers will also be reading this. Note, for instance, the phrase “nail and mail”. Although the description is a colloquial term, some might read it literally. Just think what a nail might do to a $10,000 door.

The law governing service on 3-day notices is found in CCP sec. 1162

CCP section 1162.
(a) Except as provided in subdivision (b), the notices required by Sections 1161 and 1161a may be served by any of the following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence.
(3) If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.
(b) The notices required by Section 1161 may be served upon a commercial tenant by any of the following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from the commercial rental property, by leaving a copy with some person of suitable age and discretion at the property, and sending a copy through the mail addressed to the tenant at the address where the property is situated.
(3) If, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated. Service upon a subtenant may be made in the same manner.
(c) For purposes of subdivision (b), “commercial tenant” means a person or entity that hires any real property in this state that is not a dwelling unit, as defined in subdivision (c) of Section 1940 of the Civil Code, or a mobilehome, as defined in Section 798.3 of the Civil Code.(Amended by Stats. 2010, Ch. 144, Sec. 1. (AB 1263) Effective January 1, 2011.)

CCP section 1162 says that the posting may be made “by affixing a copy in a conspicuous place on the property” – it does not have to be on the door. It could also be posted on a locked metal gate preventing access to the door, or a window close to the entryway, or on a wooden stake, sunk into the ground, 1/4 mile from the house on a farm. All of those are conspicuous places on the property. Also, the tape is fine, but a nail could damage the door – bad advice if read literally.
The directive doesn’t mention that you must also attempt service at a known business before you can resort to subservice on a person or by posting the notice.
The notice does not need to be served on someone 18 or older – the statute stated that it may be served on a person of “suitable age and discretion.” If no person of “suitable age and discretion” can be found, any “resident” may be served. That could mean a 10-year-old, alone, at home from school.
The mailing is to be made to the tenant at the residence, not the subject property unless it is a commercial tenant.

Finally, the directive adds a phantom 10 days to the mailing of the notice yet fails to mention that the September 1, 2019 law that changed the time calculation for service because it cannot include a weekend or holiday. (See CCP sec. 1161(2))

We’ll see how many courts adopt this. It will make for a bumpy ride for lawyers filing unlawful detainer cases in different counties. Process servers may be affected by this too.

Does AB 2244 Benefit Process Servers?

March 22, 2017 PSIAdmin CALSPro, Court Rules, efiling, eservice, Fax Filings

The passage of AB 2244 in 2016 has been hailed as a ringing success for CALSPro and the process serving industry. I take issue with that.

CALSPro’s support for AB 2244 has concerned me all year. The Coalition for Improving Court Access was formed as a separate entity and hired CALSPro’s lobbyist to facilitate access to the court and shepherd this bill through the legislative process, primarily because of inconsistent applications of the efiling rules. It was intended to level the playing field for efiling companies and to facilitate more universally accepted platforms.

The CALSPro Board unanimously agreed to participate as a member of the coalition. They were joined by 17 other individual members and companies.

What bothered me about this CALSPro’s participation, on behalf of ALL its members, is whether it really benefited the membership as a whole. I feel that this legislation really only benefited a few of our members and non-members who operate or work for efiling companies. It does little for process servers.

This is intended to explain why.

First of all, it must be acknowledged that participation by the Coalition and CALSPro substantially assisted the legislature and Judicial Council in its understanding of how the whole process worked. Based upon the presentations made at the 2016 CALSPro Conference, and private conversations I had with members in the know, CALSPro and the Coalition clarified in real life examples how efiling worked and explained how excess charges that were being assessed to litigants.

The decision makers in the legislative committees and Judicial Council expressed sincere appreciation for that effort.

In earlier discussions, a white paper was distributed and the progenitors of the Coalition gave valuable input to the standards for efiling and eservice. For instance, the paper made no distinction between primary and secondary service when eservice was addressed. Not doing so could have easily introduced eservice of primary service (service of a summons) into efiling standards.

Nevertheless, the Coalition and CALSPro’s participation was instrumental in the passage of AB 2244, but the result benefited the efiling companies – not the rest of the members in CALSPro or process servers.

What Does AB 2244 do?

Convenience fees for court costs

CCP § 1010.6 is amended to allow the Court, Electronic Filing Manager (EFM), or EFSP to collect a “convenience fee” for processing a payment of a filing or other fee when required to complete the filing. The convenience fee is limited to the actual costs for processing the transaction. That means fees for using a credit card, or any other form of payment that is normally charged to the merchant in a transaction can be legally passed on to the end user. Those fees may range between 2% and 3.5%. This is expected to bring it closer to 2%.

The reason for this restriction was implemented to address the practice of a prominent EFM, a third party vendor that creates the portal through which an EFSP electronically files documents into the court’s case management system, that was routinely charging a 3.5% fee for these court fees. The EFM dictated that the court fee be paid specifically by credit card.

This amendment benefits the EFSPs by allowing them to pass on convenience fees to the end user. It also locks the fees to the actual cost, not an apparent arbitrary fee charged by the Court or EFM. Fees charged are subject to audit.

Fees for efiling

The amendment requires that the EFSP’s fees for e-filing to be “reasonable.” It also requires the EFSP to charge no fee for litigants who have a fee waiver in place, or in instances when the court deems a waiver of fees is appropriate.

Recoverable costs

CCP § 1033.5 is being amended to make the costs for electronic filing recoverable for the prevailing party.

The legislation authorizes that the fee paid for efiling and eservice to an Electronic Filing Service Provider (EFSP) may be a recoverable cost, if the particular court mandates efiling. This legislation results in a “sea change” for the awarding of recoverable costs to the prevailing party for efiling charges.

Heretofore, a filing with the court was accomplished by

signing them
printing the documents and making copies to be conformed by the court after the original was filed, and perhaps an internal file copy
serving them.

Then, getting the documents to the court

walking them into the court by the lawyer or staff
mail
Federal Express or courier
messenger
internal or out-sourced daily court runner, or
on-demand process server

All added to the cost of filing. None of these fees were ever recoverable costs, and “postage, telephone, and photocopying charges, except for exhibits” were expressly not allowed by statute. These costs were absorbed by the litigant. Filing over-the-counter with a daily court runner, whether in-house or through a monthly retainer agreement with a service provider, or an on-demand special filing by courier was never considered a recoverable cost.

Since all parties must efile in courts that require it, each are incurring efiling costs, this could increase more litigation if a motion to tax costs is filed challenging excessive efiling and eservice fees.

For instance, there are a variety of add-ons to a bill from an EFSP: rush fees, special handling fees, copies made, deliveries to the department, or even personal service on opposing counsel are all potentially line item charges. One prominent efiling company offered $50 “Loyalty Program” gift certificates to law firm secretaries for frequent filings and expensive, perhaps unnecessary, services. The more rushes, needed or not, and the more efilings pushed through the system benefited both the EFSP and the secretaries. These bills, of course, were passed onto the client. The lawyers used that benefit to funnel indirect raises to their staff.

The question, subject to a motion to tax costs, is what is a “reasonable fee” charged by the EFSP? Were the add-on fees necessary? Were they reasonable? Given that fees charged by an EFSP range from free to around $10, a benchmark “reasonable fee” will vary considerably.

Unlike the recoverable fee for service by a registered process server that has been matched with a statutory fee for service by the sheriff (currently $40), efiling fees have no analogy. The fee is established by private industry, which in turn, is set by demand and competition.

The EFSP as an agent of the Court

Gov’t Code § 6159 is amended to say that the EFSP is an agent of the court, and mandates that they must periodically report its actual costs for processing court filing fees. They are subject to audit by the Judicial Council, and permit access to its premises for interviewing employees, and inspect and copy relevant records. Records must be maintained for at least four years.

An EFSP is prohibited from collecting filing fees or court fees from a party whose fees have been waived.

The law is being amended to limit the fee to the “actual cost” for processing the transaction for court fees charged by the Court, EFM and the EFSP. It will mandate the court or the EFM to accept other forms of payment such as electronic fund transfers, Automated Clearing House (ACH), and payment methods that do not charge a transaction cost, such as an electronic check.

Unfortunately, history has demonstrated that EFSPs have not been acting like an agent of the court. They have been acting like private companies (which of course they are), and have made huge investments and are currently scrambling for market share. During the formative years of efilng, EFSPs refused to allow process servers to efile through their portals into the court. One major EFSP continues to restrict efiling by litigants themselves, foreclosing any ability for a process server to participate in efiling in a court that approved them as a preferred vendor. EFSPs have deliberately arranged unannounced secret meetings with the courts, and made invitation only, exclusive presentations to the legal community to capture market share of the efiling business destined to the court.

Once the EFSP is in place in a court, they provide a court portal which displays not only their efiling and eservice, but a variety of other service – process serving – local, nationwide, and international – court reporting, investigations, mobile photocopy, records searches, etc.

This has been my initial primary objection to EFSPs and the courts’ apparent acquiescent relationship to them.

Who are Electronic Filing Service Providers (EFSPs)?

There are about 20, give or take, EFSPs in California that have the ability to directly file documents into a court through an EFM. Not all EFSPs have arrangements with all courts to file electronically. Due to the accident of history, the California Judicial Council blew half a billion dollars on a failed effort to develop a statewide e-filing system, and the state legislature cut the funding. As a result, each county court was forced to look to private industry to implement efiling, and make exclusive contracts with one or a few EFSP vendor.

There are several other companies, primarily process servers or process serving agencies, which have contracts with those EFSPs providers that contract with the particular court. The EFSP charges a retail end user between free and $10. The companies that are not EFSPs market this service and file through an EFSP are charged an amount as the end user, depending on the relationship, volume, handling, etc., and mark the fee up to their clients ranging from $9 to $45.

Process serving companies facilitate the process so that their existing clients can efile through their website without using an EFSP directly. After all, the EFSP is a competitor, and if contacted directly by the client, it makes it easier to capture just the efiling assignment, but then convert it into a process service or investigative assignment.

Costs vary considerably for a process serving agency not already in the efiling business to set up an arraignment for a seamless portal that passes efilings through to an EFSP. One EFSP will build a portal on a process server’s website for free. One company will do it for $10,000. Another will do so for a fee, but bundles the build with an integrated process serving program for generating service instructions, proofs of service, declarations for the server, billing and statements, and online statuses, and with the setup fee, will take a fee for each and every invoice generated during the term of the contract.

A lawyer or law firm may efile through the branded portal on their website, or the process server may file for the client through an EFSP. Does that make the process serving agency an EFSP also? There are several inferences throughout CCP § 1010.6 that refer to the EFSP as the entity that files electronically through the EFM. There is apparently no definition of an EFSP in either the law or court rule.

At the very least, process servers to file through an EFSP are an agent of the EFSP, and hence, a sub-agent of the court. To distinguish these, hereinafter in this article I will refer to them as an Electronic Filing Service Provider Agent (EFSPA). Local courts make no distinction between an EFSP and an EFSPA.

Is an EFSPA bound by these changes in the law?
Is an EFSPA subject to audit by the Judicial Council?
Is an EFSPA obligated to file at no charge for parties that have obtained a fee waiver?
Is an EFSPA able to pass on an additional “convenience fee” if they pay an EFSP with a credit card, resulting in 2 “convenience fees”?
Is an EFSPA’s add-on markup fee for efiling through an EFSP a “reasonable cost”, subject to recovery?
If not, could these charges be subject to challenge with a motion to tax costs?

Most of the owners of the EFSPAs I spoke to at the CALSPro conference in October, 2016 who have entered into this arrangement have yet to break even.

So here are my questions. CALSPro devoted considerable resources, time, energy, and support to this bill. Did this effort benefit the membership and process servers? If so, how?

Contra Costa Superior Court Enforces Fax Filing Rules

January 6, 2017 PSIAdmin Court Rules, Fax Filings, Fax Filings

Contra Costa Superior Court is enforcing fax filing rules that will impact attorney services.

It will affect all efilings, but the rule particularizes and singles out attorney services who file fax filings that are not in compliance with California Rule of Court sec. 3.1110(f) when the filings are not properly tabbed.

It will require any fax filing to be 1) stamped with the name, address, and phone number of the attorney service filing documents by fax, and 2) a certification of an employee that the document filed complies with CRC sec. 3.1110.

For those fax filings that do not comply with the local rule, the clerk will submit the non-compliant filing to the presiding judge who may then levy sanctions.

What is particularly offensive about this rule is that it targets attorney services, and authorizes sanctions for violating the local and California Rule of Court. This appears to be unprecedented. Also, it seems to demonstrate a pointed frustration with attorney services who have been submitting non-compliant documents to the court.

This is the new rule, and the portion that will affect attorney services is bolded in red:

Contra Costa Superior Court Rule 3.42. Papers to Comply with State Rules

(1) Moving, opposing and reply papers must be filed and served with the Court and parties within the time prescribed by law. The Court will not consider late filed papers unless good cause is shown at the hearing.

(2) All memoranda and other papers filed in support of, and in opposition to, motions shall comply with the requirements of the California Rules of Court.

(3) Despite rule 3.1110 of the California Rules of Court, subdivision (f), a large number of documents filed with the Court include exhibits that are not properly tabbed. The majority of these non-compliant documents are fax-filed through an attorney service. The attorney service prints out the documents and files them without tabbing the exhibits. The purpose of this rule is to discourage such rule violations, which impose a substantial burden on judges and staff.

(A) Every fax-filed document shall be stamped on the first page with the name, address, and telephone number of the attorney service that prepared the document for filing.

(B) Every fax-filed document or set of fax-filed documents shall include, as a separately filed document, a certification by an employee of the attorney service that the document or documents have been reviewed for compliance with rule 3.1110 of the California Rules of Court, subdivision (f), and that all exhibits have been properly tabbed.

(C) If a particular attorney service repeatedly files documents with untabbed or improperly tabbed exhibits, the matter will be referred to the presiding judge for appropriate action.

(D) Counsel of record should take note the Court has and will continue to impose monetary sanctions on attorneys who file documents with untabbed or improperly tabbed exhibits, regardless of whether such documents were fax-filed through an attorney service, and in some instances will disregard those documents or drop a hearing from calendar based on the rule violation.

(Rule 3.42(3) new effective 1/1/17)
(Rule 3.42 revised effective 1/1/17)

The California Rule of Court sec. 3.1110(f) referenced in the local rule is included below:

. . .

(f) Format of exhibits

Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.

. . .

This will likely spread to other courts if it hasn’t already.

This highlights a rather onerous effort to perform a fax filing. Perhaps it was always there and I didn’t realize it.

Does the stamping of the name of the attorney service, address, and phone number constitute an alternation of the faxed document? It isn’t a material alteration of the content of the document, but comes close to an alteration nonetheless.
Does this local rule contradict the California Rule of Court for fax filings?
Does adding “a hard 8-1/2 x 11 sheet with hard paper or plastic tabs” constitute an alteration if the faxed copy does not?
If not, who is subject to reprimand and/or sanction?
Has anyone priced plastic exhibit tabs lately?

The CRC apparently does not require tabs for courtesy copies to the Dept. Once efiling takes hold, all of this would be moot.

Furthermore, each fax filing now must accompany a stand-alone certification by an employee of the attorney service will add yet more time and handling for fax filings.

Does that signed Certification limit the use of independent contractors for fax filings?
Does that make the employee liable for sanction by the court?
Vicarious liability imputed to the employer is not presumed in the rule.
Are we now required to pick through several the 200+ pages of exhibits after a firm shoves the documents into an email or fax machine without delineating where the exhibits start and stop?
Are attorney services required to plow through the exhibits and separate out the
Exhibits A,B, or C, that are attached to Exhibits A, B and C appended to the actual exhibits to the filed document?

Fax filings are going to get a whole lot more expensive with all of this handling.