The National Conference of Commissioners on Uniform State Laws (NCCUCL) have approved a new Uniform Deposition and Discovery Act which is intended to streamline the issuance of subpoenas between states in state court actions. The NCCUCL press release is posted here.

The new act eliminates reference to a commission or letters rogatory, and specifies that file of documents in a foreign state for this purpose does not constitute an unauthorized practice of law.

This act will be submitted to each state for consideration by the legislatures and/or rule-making body.

The California Law Revision Commission has been studying this procedure for the last 3 years and will likely be proposing a legislative change to amend CCP § 2029.010. Issuing a subpoena for a California witness to testify or produce records for use in an action pending in another state court varies widely between counties. For instance, San Diego, San Mateo and Sacramento Counties issue subpoenas for free; Los Angeles, San Francisco and Santa Clara require a civil case cover sheet and a $320 first appearance filing fee. San Francisco and Santa Clara also require local counsel to sign a civil cover sheet - San Francisco has changed their procedure 3 times in the last 5 years, and also requires a petition and declaration of a California attorney.

This newsletter is intended to provide updates to the PSI Registered Process Server's Guides and to distribute timely and topical information and announce changes that affect process servers, primarily in California but also others across the country.

Please send us any articles of interest, submit an article you write for publication, court documents that affect process servers, tricks of the trade, new gadgets, product reviews, rants, or suggestions.

This newsletter is also being distributed via the use of a service Constant Contact which, I feel, has an honorable "anti-spam policy", requiring double opt-in and provides an easy way to opt-out, etc., and conforms with a the new "Federal Can Spam" law. I have been hesitant about starting an electronic newsletter until I stumbled across this company.

We archive these newsletters here.

Tony Klein
 

California Governor Schwarzenegger has signed into law AB 859, making a change that will be effective on January 1, 2008. The bill was proposed and supported by CAPPS that addressed the issue of timely return of a proof of service to the sheriff after commencing an attachment or levy.

CCP sections 488.080 and 699.080 govern a registered process server's duties when serving writs of attachments and executions, respectively. One of the requirements in those sections requires a proof of service return to the sheriff within five days. Otherwise, the attachment or execution may be released by the sheriff.

Calculating the five days has been inconsistent among sheriff offices, especially when the fifth day falls on a weekend or holiday when the sheriffs offices are closed. Sheriffs in most counties would deem a returned proof of service timely when filed by the following business day. Some sheriffs in a handful of counties have rejected them and released attachments and levies.

The new law amends CCP sections 488.080 and 699.080 to further specify that the five days are "court" days and should eliminate the ambiguity that has occurred.

One exception to this could be the US Marshal in the Central District of California (Los Angeles) who calculates the five days from the date the file is opened, not the date the levy commences.

The bill also quietly retired the seemingly duplicate reference to "an affidavit of the manner of levy performed", and a "proof of service". Some sheriffs offices require both "an affidavit" and a proof of service because of this double reference in the law. Only a proof of service will be required after January 1, 2008.

Another amendment removes the ambiguity of the manner of service of a notice of hearing for a writ of possession on a defendant who has not yet appeared in the action. The clarification requires that an unnamed defendant be served in the same manner of service of a summons.

There are several bill pending that deal with pretexting (SB 328), redacting Social Security numbers from court records (SB 644), school and university records (AB 1168), and trespassing on tribal lands (SB 331).

Plaintiff Carr file a quiet title action to a property in 2000. He named as defendants Joseph Kamins, the original owner, his successors, and "all persons claiming by, through, or under such decedent." In 2001 Carr obtained an order to serve the summons by publication. Ultimately, the clerk entered default against all defendants, the the court entered an order that quieted the tile.

Four years passed and Arlene, the defendant Kamins' daughter, sought to set aside the judgment. She contended that she had lived at the property continuously since 1995, maintained electric services, paid property taxes, but never filed a petition to probate her father's estate. The trial court denied her motion to vacate the judgment.

Arelene Kamins appealed that order.

The appellate court reversed the order. The court looked to the sufficiency of the inquiry into the search to discover persons having an interest in the property. The search Carr made was limited only to the name of James Kamins. No effort was shown to locate or notify Irene Kamins, the decedent's wife and co- holder of title to the property. Arlene Kamins, who lived in "open and actual possession" of the property was not notified.

Therefore, Arlene Kamins was denied due process.

On January 27, 2007 CAPPS held a Strategic Planning Session to forge a new future for CAPPS. I wrote an article for the CAPPS Newsletter intending to notify the membership of the changes that were proposed and that are going to be written into several bylaw amendments. Although the Strategic Planning meeting occurred 5 months ago, and it has dominated the discussion at 2 Board meetings and a special follow-up session in early June, little has been said about it to the membership. Several local area meetings are been planned to get the word out. (Note: As of this publication the CAPPS Administrative office has sent at least two mailings detailing this plan.)

As we reported in the last issue, members can view the full report that was included in the CAPPS Board Meeting Agenda Packets for the March and June Board meetings here.

We invite you to comment on these and other bylaw proposals on our PSI Blog here.

If you are a CAPPS member and want to have a say in the future of your association, you must come to the conference to vote. You are allowed to vote, even if you don't register for the conference. The vote will occur on October 6, 2007 at the MontBleu Resort Casino & Spa, South Lake Tahoe, Nevada.

The NAPPS 2007 Annual Conference and Education Seminar was held in Portland from May 31, 2007 through Saturday June 2, 2007.

I made a presentation about Affidavits and Proofs of Service.

The presentation came a week after the article appeared "What is Proper Proof of Service?"

The article sparked another side discussion over what constitutes a "digital signature" vs. an "imaged signature." It appears that some process servers are using process serving software programs that apply an image of the server's signature to a proof of service so that it can be printed it in color so that the signature appears in blue, as though it were signed. If anyone other than the server is applying this image to the proof, it is still a forgery.

Digtal notarizations are being completed for real estate documents in some states, but I have never seen an affidavit of service done in this manner. If anyone can provide me with a sample of one, it would assist me in our research.

There are 70 plus new Judicial Council Forms that have been revised for July 1, 2007. Only a few will affect process servers. All forms may be viewed and downloaded from the Judicial Council web site here.

Those that affect process servers are

• Civil Case Cover Sheet
• Order to Attend Court aka Criminal Subpoena
• Defendant's Claim and ORDER to Go to Small Claims Court
• Earnings Withholding Order
• Employer's Return