Last year, the California Legislature enacted Assembly Bill 2791, which directs the Judicial Council of California to create a statewide form to be used by litigants in civil actions or proceedings to request service of process or notice by a marshal or sheriff. (Gov. Code, § 26666.10.) A portion of AB 2791 took effect on January 1, 2023, while Gov. Code, § 26666.10 will take effect on January 1, 2024, with staggered implementation for various sections discussed below. Effectively, a new mandated universal instruction form will be required to initiate any service with a marshal or sheriff, subject to limited review.
Under current law, levying officers, including sheriffs’ departments may, but are not required to, serve notice or other documents transmitted to them electronically. This discretionary regime produces inconsistent outcomes where in some cases, sheriff’s offices have refused to serve documents on substantive grounds, essentially replacing their judgment for that of the bench officer who issues the original document. This bill is intended to bring service of process in line with other state laws recognizing the validity of electronic transmission and service by requiring marshals and sheriffs, and their departments and offices, to serve notices, including court documents and orders, transmitted to them electronically for persons with a fee waiver beginning January 1, 2024, and for all persons requesting service beginning January 1, 2026
AB 2791 mandates that (1) levying officers accept electronic submission of requests for service of process, and (2) limits the officer or department’s review of the submitted documents to specified criteria. Specifically, it requires a marshal or sheriff, including the department or office, to accept an electronically signed notice or other process issued by superior courts in civil actions or proceedings. Additionally, the bill requires a marshal or sheriff to allow a notice or other process for service to be transmitted to the department or office by email or fax and prohibits those entities from charging or collecting a fee for the transmission of the notice or other process for service.
Importantly, the bill prohibits a sheriff, including their office or department, from reviewing the substance of a notice or other process for service. Instead, it requires the officer to serve the notice or other process if (1) a case number appears on the notice or other process (excluding included blank forms such as responsive forms); (2) a name, description, and address has been provided for the person to be served; (3) an order to be served, including a restraining order, bears the signature of the judge and court endorsement or seal; and (4) the statewide unified Judicial Council form, to be created pursuant to other provisions of the bill, is present and complete.
Additionally, the bill stipulates that its provisions would apply to service of process and court documents for purpose of notice, and that nothing in the section should be construed to impede any right or obligation possessed by a private process server, including, but not limited to the ability to serve any valid writ, notice, or other process as requested by a client.
The new statute defines “notice” broadly to include “all papers and orders required to be served in any proceedings before any court.” (Gov. Code, §§ 26660 & 26666.) The new law also specifies that the form must “require” the following information: “the name, address, and description of the person to be served and the signature of the litigant requesting service, or their attorney of record.” (Gov. Code, § 26666.10(c).) The council may require other information, but must also indicate which fields on the form are required and allow the signature of the requesting party or that party’s attorney to be made electronically. (Id.)
In accordance with the new law, the council adopted two new forms, Request for Sheriff to Serve Court Papers (form SER-001) and an attachment to that form, Special Instructions to Serve Court Papers (form SER-001A). All litigants requesting service of court papers are required to fill out form SER-001 and turn it in to the applicable sheriff’s office. Those litigants requesting service of a writ or enforcement of judgment must also fill out form SER-001A.
Practically speaking, the new forms should enable litigants to streamline judgment enforcement and other process issued by superior courts in civil actions or proceedings. The Request for Sheriff to Serve Court Papers (SER-001) includes the required information mandated by the statute, such as name, address, and description of the person to be served. Similarly, the Special Instructions (SER-001A), include any required information and disclosures for judgment enforcement-related process. Because levying officers, including marshals and sheriffs, do not have legal authority to conduct substantive review of court orders, compliance with the forms should facially satisfy any process requirements mandated by the new statute.
However, like many statewide forms issued by the council, SER-001 and SER-001A are multipurpose forms. Depending on the type of service requested, some information is mandatory, and levying officers retain discretion to reject facially defective submissions. To avoid unnecessary delays and administrative headaches, litigants should conform to the new mandates as closely as possible. Contact CDA today!