Monthly Archives: October 2015

Serving Process on the Process Server

Serving Process on the Process Server
October 1, 1998

“Chaos would result if the legal community could not depend on the truthfulness of declarations of service of process. Public policy requires that it be regarded as serious, with consequences sufficiently adverse to act as deterrence . . . . Service of process is the means by which a court having jurisdiction over the subject matter asserts its jurisdiction over the party and brings home to him reasonable notice of the action. It is an indispensable element of due process of law.” Kappel v. Bartlett (1988) 200 Cal. App.3d 1457, 1464, 246 Cal. Rptr. 815 (citing Judicial Council of Cal. com., 14 West’s Ann. Code Civ. Proc. (1973) ed.) 413.10, p. 541, and 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, 84, p. 454) (citations omitted.)

Despite these truisms, anyone who regularly represents defendants has endured the chore of demonstrating why a court clerk’s entry of default should be set aside. Often, the default has resulted from a false, misleading, or perhaps perjurious, declaration of service of process.

In the opinion of one process server with years of experience both in the field and in training others, process servers regularly execute and file false or incorrect proofs of service for numerous and wifely varied reasons: inadequate training or knowledge of the law, a high volume of assignments, payment only upon successful completion of service of process. None of these reasons provide a justification to falsely execute a proof of service upon which the parties, their attorneys, and the courts will rely.

More frustrating is explaining to the client why they must incur attorneys’ fees and costs resulting from someone else’s fraud. However, these clients should be advised that they are not without recourse because a process server’s perjurious or false statements are actionable. Although there is no civil action for perjury, the process server’s conduct would support other claims upon which relief can be obtained: Abuse of Process, Negligence, and Negligent Infliction of Emotional Distress.

Process Servers are Subject to Strict Regulation

“The Legislature, recognizing the importance of [their] function, has subjected process servers to regulation in the Business and Professions Code section 22350 et seq.” Kappel, 200 Cal. App.3d at 1464. Process servers are required to file a registration certificate in order to regularly serve process. Bus. & Prof. Code 22350. That “certificate of registration may be revoked or suspended whenever it has been determined that the registrant has made a service of process, including service completed by an employee or independent contractor of the registrant which does not comply with the provisions of law governing the service of process in this state or constitutes an improper service of process not amounting to a violation of law.” Bus. & Prof. Code 22358.

Vicarious liability for an individual process server’s misdeeds is legislatively mandated: “A registrant shall be responsible at all times for the good conduct of his or her employees acting within the course or scope of their employment, and any person acting as an independent contractor within the course or scope of the agency relationship with the registrant.” Bus. & Prof. Code 22356.

Abuse of Process

An action for abuse of process is a cause of action “long recognized at common law but infrequently utilized.” Kappel, 200 Cal. App.3d at 1463. “To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.” Coleman v. Gulf Ins. Group, (1986) 41 Cal.3d 782, 792, 226 Cal. Rptr. 90.

The requirements to prove an ulterior motive differ in the case law. Some collateral, illegal objection in executing a false declaration would suffice. Golden v. Dungan (1971) 20 Cal. App.3d 295, 97 Cal. Rptr. 577. However, malice or an ulterior motive may be “inferred from the wilful abuse of the process.” Tranchina v. Arcinas (1947) 78 Cal. App.2d 522, 526, 178 P.2d 65; 5 Witkin, Summary of Cal. Law (9th ed. 1988), 463, et seq., p. 550.

The court in Kappel was faced with a “civil matter [which] proceeded to judgment by default, however, because the process server entrusted to serve the summons and complaint allegedly did not do so, yet falsely executed a declaration that he did.” Id. at 1463. Upon this basis, and the policies set forth above, the court approved the application of the abuse of process cause of action to the situation where a process server falsely executes a proof of service. Id.

A false, fraudulent, or perjurious declaration of service of process misuses “the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.” Meadows v. Bakersfield Savings & Loan Assoc., (1967) 250 Cal. App.2d 749, 753, 59 Cal. Rptr. 34, 37. Because the process server acts with the imprimatur of the court, his misconduct cannot be tolerated.

Negligence and Infliction of Emotional Distress

“There might be circumstances short of a knowing execution of a false declaration of service where, due to lack of care in service of process, a party injured thereby could state a cause of action for negligence or negligent infliction of emotional distress.” Kappel, 200 Cal. App.3d 1467. In Slaughter v. Legal Process & Courier Service (1984) 162 Cal. App.3d 1236, 1249, 209 Cal. Rptr. 189, the court reasoned:

It is foreseeable that improper service of process, combined with subsequent falsification of an affidavit, could result in a default judgment against the person served and in emotional as well as financial injury to him. In addition, the policy of encouraging process servers to perform their function responsibly is a found one, justifying imposition of a legal duty of care towards the individual being served. The judicial system relies upon process servers to ensure that the due process rights of a defendant are protected, and potentially severe consequences are likely to result for a defendant when a process server does not perform his task as prescribed by law.

Most people consider claims for infliction of emotional distress in the context of witnessing a family member suffer injury, e.g., being hit by a car. However, the requirement that the injured party be contemporaneously aware of the negligence of the person causing that injury has long been discarded. See Mobaldi v. Board of Regents (1976) 55 Cal. App.3d 573, 583, 126 Cal. Rptr. 720, disapproved on other grounds by Baxter v. Superior Court (1976) 19 Cal.3d 461, 138 Cal. Rptr. 315, and Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal. Rptr. 254. Therefore, learning of the entry of defaults days or months after the process server’s fraud will not defeat the claim for infliction of emotional distress.

Punitive Damages Are Also Available

Civil Code Section 3294 allows the recovery of punitive damages upon any obligation not arising from contract where it is “proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” California Civil Code Section 1427 explains that “An obligation is a legal duty, by which a person is bound to do or not do a certain thing.” Under Section 1428, such an obligation can arise from a contract or by operation of law. “An obligation arising from operation of law may be enforced in a manner provided by law, or by civil action or proceeding.” Id. The process server’s duty to act carefully is thus created both by common law and by the above-referenced provisions of the Business & Professions Code.

The depravity of the process server’s misconduct fulfills all the requirements for the penalty of exemplary damages. The intentionally false process server could readily be found guilty of malice, fraud or oppression in the exercise of his sole duty – the truthful service of process. See Cal. Code Civ. Proc. 3294(c), BAJI 14.71.

Most times, the potential recovery of costs incurred in setting aside a default judgment may not justify the incursion of additional expense in “discovering” the facts justifying an award of punitive damages. However, in an appropriate case, such as repeated acts of misconduct by a particular process server or the gross impropriety of the service of process at issue, punitive damages are available upon adequate proof. Given the number of defaults and default judgments that are set aside because of process server falsity or fraud, there is a strong possibility judges will be willing to punish the offending process server and set an example for others.

The Resulting Judgment Is Easily Enforced

The statutory duties imposed on registered process servers include posting a bond to serve as a fund for their misdeeds which cause damage. Bus. & Prof. Code 22353. Business and Professions Code Section 22357(a) specifically provides, “Any person who recovers damages in any action or proceeding for injuries caused by a service of process which was made by a registrant and did not comply with the provisions of law governing service of process in this state may recover the amount of the damages from the bond required by Section 22353.” Section 22353 requires a surety bond in the amount of $2,000. Therefore, the first $2,000 of the client’s costs can be easily recouped, perhaps in a small claims action.

The Litigation Privilege Does Not Bar An Action Against the Process Server

Process servers may claim that their declarations are reasonably related to the litigation and therefore subject to the absolute litigation privilege enunciated in Civil Code Section 47. “A privileged publication or broadcast is one made: . . . (b) In any (2) judicial proceeding.” This language has been construed to cover “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection of logical relation to the action.” Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal. Rptr. 638 (citations omitted).

A line of appellate cases previously carved out an array of communications from the protection of the absolute litigation privilege when the communications are not made in the “interests of justice.” See Bradley v. Hartford Acc. & Indem. Co.(1973) 30 Cal. App.3d 818, 826, 106 Cal. Rptr. 718; Earp v. Nobbman (1981) 122 Cal. App.3d 270, 284, 175 Cal. Rptr. 767 (“Only if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term ‘judicial proceeding’ and the persons who should be regarded as litigants or other participants;”) and other cases cited in Silberg, supra. 50 Cal.3d at 219.

The evolution of the litigation privilege and the regulation of process servers demonstrates that the litigation privilege is inapplicable to process servers’ misdeeds. “It is assumed that the Legislature has in mind existing laws when it passes a statute.” Estate of McDill (1975) 14 Cal.3d 831, 837-838, 122 Cal. Rptr. 754, 758 (citations omitted). Additionally, it cannot be presumed that the Legislature performs idle acts, or that courts may construe its statutory enactments to be rendered superfluous. Shoemaker v. Myers (1990) 52 Cal.3d 1, 22, 276 Cal. Rptr. 303. Moreover, in the construction and interpretation of statutory language, every word must be “presumed to have been used intelligently and designedly for an express purpose by the Legislature.” Chavez v. Sargent (1959) 52 Cal.2d 162, 339 P.2d 801. “It is not to be presumed that the Legislature used language in a sense which would render nugatory important provisions of the statute.” Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 335 P.2d 672, 676.

The litigation privilege was first enacted in 1872 and has undergone only amendment since. None of those amendments are relevant here (1873-1874 – amending language of subdivision (2) and grammatical changes to subdivision (3); 1895 – amending subdivision (4) regarding reports in public journals; 1927 – adding internal numbering and a provision to subdivision (2); 1945 – amended to cover broadcasts as well as publications, and in subdivision (4) deleting “without malice”; and 1979 – adding subsection (4) of subdivision (2) relating to other proceedings authorized by law and reviewable by mandate.)

The sections of Business and Professions Code discussed above were all enacted in 1971, well after Civil Code Section 47. They were only slightly amended in 1982 – to delete duplicate provisions of the Bond and Undertaking Law, and to preclude cash deposits in lieu of bonds (22357(b)).

Moreover, Business and Professions Code Section 22357(a) specifically contemplates the recovery of damages in “an action or proceeding for injuries caused by a service of process.” Allowing the recovery of those damages “from the bond required by Section 22353” provides additional evidence that the Legislature intended to allow an “action or proceeding” against the process server separate and apart from an action on the bond. Such actions or proceedings would be rendered superfluous if all of a process server’s statements were protected by the absolute litigation privilege. Similarly, the vicarious liability imposed by Business and Professions Code Section 22356 would be meaningless because there could no underlying liability. If process servers’ false and fraudulent statements were shielded by the litigation privilege, the entire scheme of regulation would be fanciful at best.

Read together, the only way to reconcile the litigation privilege with the later-enacted regulation of process servers must be to except false, fraudulent, or otherwise unlawful proofs of service from the protection of the absolute litigation privilege. For these reasons and the policy reasons explained above, Civil Code Section 47 should not bar an action against a process server for damages resulting from a false or fraudulent service of process. “

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Posted by on October 23, 2015 in Process Service


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Criminal Liability for Preparing False Proofs of Service [California] [Tony Klein] [Process Server’s Institute]

Process Server Institute

By Tony Klein
Revised on 6/11/15

“In 2007, I wrote an article relating to a number of incidents involving the preparation and filing of a proper proof of service, entitled “What is a Proper Proof of Service?” That article can be found here:

Since then, this issue has continued to vex process servers, and has led to a number of anecdotal incidents that have resulted in criminal prosecutions.

In 2008 a process server was charged and in Siskiyou County, California for falsifying proofs of service. He was charged with Identify Theft, Forgery, False Personation, Preparing False Evidence, and Uttering (Filing) a False/Forged Instrument. The process server pleaded nolo contende, and was sentenced to 10 days in jail. He did so under house arrest, and filed proof of completion. See Docket Sheet and Complaint

In another case, a Boston process serving agency, Stokes & Levin, was sued by a witness who was never served with a subpoena. The process server who purportedly served the witness had stopped working for the agency several months earlier, and his signature had been placed on the proof of service with a rubber stamp.

The suit was brought after the witness, a former president of a Bermuda bank, failed to attend an administrative hearing. News of his failure to honor the subpoena resulted in damage to his reputation, and cost him two positions on the board of directors of two companies. The process serving agency defaulted in the civil suit, and the judgment was rendered in the amount of $3.3 million. Subsequently, the Massachusetts Attorney General petitioned the court to prohibit Stokes & Levin from acting as a process server, advertising legal process services, or accepting money for serving legal papers, and forming another legal process serving business or operate under another name. The court granted the Petition and entered an Order accordingly.

In another astounding case, in April, 2009, American Legal Process (ALP) of Lynbrook, New York was accused by the New York Attorney General of falsifying thousands of affidavits of service, describing it as a “massive fraud scheme.” The AG has also petitioned the court to issue show cause orders to the 38 lawyers and law firms who retained APL, alleging that they knew, or should have known, that the services were invalid. OSC and Petition

The New York court has vacated 100,000 default judgments for cases served by ALP, and the defendants in those cases are beginning to file their own lawsuits for the damages they have incurred.

The following is a short overview of what a proof of service is, and what it represents to the court. Additionally, I will describe the crimes that occur when a proof of service is improperly prepared, signed, and filed.

Once a summons is served, a proof of service is signed by the process server attesting to the date, time, and manner of service. Some states allow for that declaration to be made under penalty of perjury, while others require the process server to swear to the facts before a Notary Public. The Notary Public then signs a jurat, a short statement that the person swore to the truthfulness of the statement and, in most cases, verifying the process server’s identity. That notarial act is memorialized in a notary journal of the notary who is a commissioned public official.

A “return” of service is not necessarily equated with “proof of service”, but contemplates that the return will be made either to the court or a judge.

Upon filing, the court treats the proof of service as evidence. It is not conclusive evidence that service was made, but rather “prima facie evidence” of the facts stated therein. Prima facie is a Latin term meaning “at first sight; on the face of it; so far as can be judged from the first disclosure; a fact presumed to be true; etc.” (Black’s Law Dictionary)

California provides for an enhanced status of a proof of service signed by a California Registered Process. California Evidence Code § 647 gives a proof of service signed by a Registered Process “rebuttable presumption status”, statutorily shifting the burden of proof to a defendant to prove that he or she was not served.

The appellate court recently address this issue in Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419.

So what crimes are being committed when a proof of service is falsified or signed on behalf of another?

Using the Siskiyou County case as an example will help illustrate these crimes charged. Although the common law and statutory crimes described may be referred to by another name in other jurisdictions, it can provide some insight on how a criminal prosecutor might view these acts.

The facts stated in the felony complaint are as follows: The defendant, a San Jose process server, forged the signature of another process server who had apparently served one defendant in a case pending in Siskiyou County, 300 miles away. That proof of service was then filed with the Siskiyou County Superior Court.

The defendant committed Forgery, a violation of California Penal Code (PC) 470(d), by his willfully and unlawfully making, altering, forging, counterfeiting, and signing the name of another, namely the process server, and did utter, publish, pass, and attempt to pass as true and genuine the document, knowing that the document was false.

The defendant committed False Personation and violated PC § 539(2) when he unlawfully and falsely personated the process server in a private and official capacity and in such assumed the character and “verified, published, acknowledged and proved in the name” of the process server, a written instrument, with the intent that the same be recorded, delivered and used as true a proof of service that was to be filed.

The defendant committed Identity Theft and violated PC § 530.5 willfully and unlawfully obtained the personal identifying information of the process server and used it for unlawful purpose, by using the information on a proof of service.

The defendant Prepared False Documentary Evidence, a violation of PC § 134 by forging the signature of the process server, under penalty of perjury, with the intent to produce it, and to allow it to be produced for a fraudulent and deceitful purposes, as genuine and true, and allowing it to be filed with the court.

The defendant was charged with Filing a False or Forged Instrument with the court under California PC § 115(c) because he willfully, unlawfully, and knowingly procured and offered a false and forged instrument, to wit, a proof of service of summons, and filed, or caused to be filed, said document with the court.

Perjury is defined as the willful assertion as a matter of fact, opinion, belief, or knowledge of a material issue, known to be wrong, in a court or by affidavit. This crime was not charged in this case, so one could assume that the facts in the forged document were likely accurate. It is noteworthy that the prosecution went forward even though the facts in the proof of service were accurate.

California proofs of service are made under penalty of perjury. When a notarized affidavit is signed, as they were in the recent New York case, the notarized affidavit provides another layer of protection that the document is authentic. Hypothetically, if this one proof of service was signed as a notarized affidavit, and the Notary Public knew that it was not the person who actually signed it, the false notarization would implicate the notary public as well. A false statement made by the affiant, sworn to before a Notary Public as a public official, is a perjury.

Unfortunately, the process server and the process serving agency, and perhaps a notary public may be involved in the same set of crimes, especially when the company simply operates a business that routinely sign proofs of behalf of their process servers, and the process servers acquiesce to the practice. If that occurs, a criminal conspiracy could be charged against all of them, and could result in accomplice liability. This is the exception, but is not unheard of.”

Process Server Institute

Criminal Law, California

1900. Forgery by False Signature
The defendant is charged [in Count ______] with forgery committed by signing a false signature.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant signed (someone else’s name/ [or] a false name) to [a/an] ;

2. The defendant did not have authority to sign that name;

3. The defendant knew that (he/she) did not have that authority;


4. When the defendant signed the document, (he/she) intended to defraud.

Someone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right.

[For the purpose of this instruction, a person includes (a governmental agency/a corporation/a business/an association/the body politic).]

[It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the defendant’s acts.]

[The People allege that the defendant forged the following documents: .

You may not find the defendant guilty unless all of you agree that the People have proved that the defendant forged at least one of these documents and you all agree on which document (he/she) forged.]

Bench Notes
Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the prosecution alleges under a single count that the defendant forged multiple documents, the court has a sua sponte duty to instruct on unanimity. (See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the last bracketed paragraph, inserting the items alleged. (See also Bench Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is not required.)

Give the bracketed sentence that begins with “For the purpose of this instruction” if the evidence shows an intent to defraud an entity or association rather than a natural person. (Pen. Code, � 8.)

Give the bracketed sentence that begins with “It is not necessary” if the evidence shows that the defendant did not succeed in defrauding anyone. (People v. Morgan (1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)

If the prosecution also alleges that the defendant passed or attempted to pass the same document, give CALCRIM No. 1906, Forging and Passing or Attempting to Pass: Two Theories in One Count.

Elements. Pen. Code, � 470(a).

Signature Not Authorized—Element of Offense. People v. Hidalgo (1933) 128 Cal.App. 703, 707 [18 P.2d 391]; People v. Maioli (1933) 135 Cal.App. 205, 207 [26 P.2d 871].

Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38 Cal.Rptr.2d 176].

Intent to Defraud Entity. Pen. Code, � 8.

Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, �� 148, 159-168.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, � 85.02[2][a][i] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, � 143.04[1][a], [d][2][a] (Matthew Bender).

Lesser Included Offenses
Attempted Forgery. Pen. Code, �� 664, 470.

Related Issues
Documents Not Specifically Listed in Penal Code Section 470(d)

A document not specifically listed in Penal Code section 470(d) may still come within the scope of the forgery statute if the defendant “forges the . . . handwriting of another.” (Pen. Code, � 470(b).) “[A] writing not within those listed may fall under the part of section 470 covering a person who ‘counterfeits or forges the . . . handwriting of another’ if, on its face, the writing could possibly defraud anyone. [Citations.] The false writing must be something which will have the effect of defrauding one who acts upon it as genuine.” (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 741-742 [38 Cal.Rptr.2d 176].) The document must affect an identifiable legal, monetary, or property right. (Id. at p. 743; Lewis v. Superior Court (1990) 217 Cal.App.3d 379, 398-399 [265 Cal.Rptr. 855] [campaign letter with false signature of President Reagan could not be basis of forgery charge].) See CALCRIM No. 1902, Forgery of Handwriting or Seal.


Forgery, Illinois

Overview of Illinois Forgery Laws

The crime of forgery, like those of issuing or delivering bad checks, bank-related fraud, and false personation, is based on deception. Several of the deception-related offenses, including forgery, require that the person performing the criminal act have the “intent to defraud,” or that he or she act knowingly with the specific intent to deceive or cheat for the purpose of causing financial loss to another, or to bring financial gain to him- or herself. According to Illinois forgery laws, a person commits forgery when he or she knowingly and with intent to defraud:

Makes or alters any “document apparently capable of defrauding another” in such a way that it purports to have been made by another person or at another time, or with different provisions, or by authority of one who did not give such authority
Issues or delivers any such document, knowing it to have been thus made or altered
Possesses, with the intent to issue or deliver, any such document knowing it to have been thus made or altered
Unlawfully uses another person’s digital signature
Unlawfully uses another person’s signature device (i.e., unique information such as a code or personal identification number (PIN), or a uniquely configured physical device) to create his or her electronic signature
Thus, in order to convict a person of delivery of a forged document, the prosecution must prove beyond a reasonable doubt that the defendant:

Made or altered
a document apparently capable of defrauding another, made or altered in such a way that it purports to have been made by another person, at another time, with different provisions, or by someone’s authority
with knowledge that it has been thus made or altered, and
he or she knowingly delivers or issues the document
with intent to defraud.
Although the offender must act with intent to defraud, he or she need not actually defraud or deceive another person to complete the crime; rather, forgery by delivery is accomplished upon delivery of the deceptive document, whether or not its purpose has been achieved.

A document “apparently capable of defrauding another” includes one which creates, transfers, alters or terminates any right, obligation or power regarding any person or property. Moreover, for purposes of forgery, a “document” includes any tangible or electronic record produced manually, electronically, or by computer, and any Universal Price Code Label or coin.

Defenses to Forgery Charges

Lack of intent to defraud or deceive
Duress or compulsion
Infancy (for persons under 13 years of age)
Penalties and Sentences

Illinois forgery laws charge the offense as a Class 3 felony. Such felonies are subject to a sentence of 2 to 5 years in prison, periodic imprisonment of up to 18 months, or probation or conditional discharge of up to 30 months; a fine of up to $25,000 for each offense; and/or restitution. When the forged document consists of only one Universal Price Code Label, the state classifies such forgery as a Class 4 felony, a lower grade of the offense. Class 4 felonies are punishable by a term of 1-3 years in prison, periodic imprisonment of up to 18 months, or probation or conditional discharge of up to 30 months; a fine of up to $25,000; and/or restitution.

On the lower end of the sentencing spectrum, forgery of an academic degree or coin is classified as a Class A misdemeanor — except where a false academic degree explicitly states “for novelty purposes only” — in which case no crime has occurred and no punishment will be levied. Otherwise, Class A misdemeanor convictions are subject to a sentence of imprisonment or periodic imprisonment of less than one year, or probation or conditional discharge of up to 2 years; a fine of up to $2,500 for each offense; restitution; or a combination of those penalties.

Illinois Forgery Laws: Statute

Deception and Fraud; Forgery – Criminal Code Article 17, Section 17-3

– See more at:

“State lawmakers made several changes to the Criminal Code in 2012. New crimes have been established and penalties for old crimes have been increased.

One of the most important changes in Illinois law concerns forgery. This offense is a Class 3 felony which is punishable by 2-5 years in prison. The maximum fine for such an offense is $25,000, but the court can also order the defendant to pay restitution, which is unlimited.

The offense is found at section 720 ILCS 5/17-3. While many parts of the statute remain unchanged, the legislature broadened the definition of forgery. The effect of the new law is that more conduct would constitute a prosecutable offense under that section.

The offense of forgery is defined as the following:

A person commits forgery when, with intent to defraud, he or she knowingly makes a false document or alters any document to make it false and that document is apparently capable of defrauding another.
720 ILCS 5/17-3.

It is also forgery to issue or deliver such a document, or possess with intent to issue or deliver such a document, knowing it was thusly made. An example would be depositing a fraudulent check at a bank.

The new statute broadens the definition of forgery. Under the earlier law, the document had to seem as though it was created by another person in order to be illegal. This new definition provides that a document can be a forgery even where it bears the name and signature of the person who actually made it. The identity of the maker does not matter.

720 ILCS 5/17-3 provides that a document is a forgery where two elements are present:

It is false.
The document is capable by its appearance of defrauding another.
This is a simpler definition of forgery because it removes the necessity of proving that the document purports to have been created by another. The State now has to prove only that it was false and capable of defrauding someone in order to obtain a guilty verdict.

The penalties for forgery remain the same. But one should know that in cases such as these, the court will always order restitution. This is the legal term for ‘restoring’ the victim by compensation. By statute, restitution can be no more than actual loss by the victim. Where the victim was reimbursed by an insurance policy, the defendant should only be liable for paying the deductible, because that would be the only loss.”

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Posted by on October 23, 2015 in Process Service


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PI Kellerman serves justice, stakes out cheaters

If you’re a viewer of the TV show “Cheaters”– face it. You’re fascinated by clandestine glimpses into the seamy side of life

Greg Kellerman, who operates the Glen Carbon-based Kellerman Investigations, is a private investigator who stakes out cheaters and describes his work as “the best job in the world.”

Even though the majority of his time is spent as a process server–three months ago he served papers to rapper Nelly at a concert in Carbondale–he also provides remedies for a variety of domestic, social and corporate ills.

For $500 he recently confirmed the suspicions of a betrayed Metro-East wife. Two blocks away through the eye of a long lens, her trimmed-down, earringed and tattooed husband who quit his job, was discovered having an affair in the back seat of a new sports car in St. Louis.

“I can help anyone who has a cheating spouse,” Kellerman said, “with same day results.”

Equipped with a buttonhole and pencil camera—undercover essentials—Kellerman also gets repeat business from employers keeping tabs on worker’s compensation cases.

“For instance, an employee says he is hurt on the job, but there may be others in the company who do not believe it,” he said.

“Then I see them on roofing jobs or doing other activities like boating.”

Last month Kellerman satisfied a business client with evidence that the low back problems of a worker confined to light duty, oddly wasn’t getting in the way of the employee’s love for small motor car racing.

“I saw him lifting 450-pound cars,” Kellerman said.

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Posted by on October 12, 2015 in Investigations


You’ve been served: Process servers use politeness, persistence, guile to get job done


You’ve been served: Process servers use politeness, persistence, guile to get job done

Home / Local / You’ve been served: Process servers use politeness, persistence, guile to get job done
You’ve been served: Process servers use politeness, persistence, guile to get job done

Dawn Voss has no luck serving debt collection papers to someone listed at a north St. Louis County address. A man, who declined to be identified for publication, tells Voss the person she’s looking for doesn’t live there. Photo by Karen Elshout
When a man attacked Dawn Voss with a frozen tuna, the incident became one of her better stories.
Voss had tried to serve papers on him and was unsuccessful, so she brought them to the fish packing plant where he worked. Voss donned a hard hat and sneaked in. The man took off running, throwing the 20-pound frozen fish at Voss as he went.
The man was arrested, Voss says.
But was he served?
“I got him,” Voss says with satisfaction.
Voss is a contract process server for Glen Carbon, Ill.-based Kellerman Investigations. She works in Illinois and Missouri, making from $20 to $100 for each service, with the amount depending on the location and type of service — restraining orders, domestic services and rush jobs are more expensive.
Her work brings in enough money for a “comfortable” living for the single mother and her two children. In the last six years, Voss’s job also has brought her a broken knee; an invitation to appear on “Judge Judy” to talk about a case involving a woman who threatened her (Voss declined); dog attacks; and a white Dodge Charger, which she bought for $35,000 after her previous car was totaled in a head-on collision with a drunk driver when Voss was on the road for work.
“She ended up getting served with my lawsuit,” Voss says of the other driver. “She hit the wrong one.”
Process servers like Voss drive thousands of miles each year, face the unknown with each service and are almost always are the bearers of bad news. Voss says she gets “about one crazy a month.”
The need for their services has increased in recent years in Missouri, where filings in circuit courts rose from 1.16 million cases in fiscal 2008 to 1.21 million in fiscal 2010, according to the Missouri Judiciary’s 2010 annual report.
Process servers operate in an industry that’s often loosely regulated and easily thrown into disrepute by a few bad apples. Missouri has no licensing requirement for process servers, though it does for private investigators. In some counties and cities, including the city of St. Louis and Jackson County, court approval is required to work as a process server. Illinois requires a licensed private investigator to oversee process servers, who must have a Permanent Employee Registration Card from the Illinois Department of Financial and Professional Regulation. Background checks and fingerprinting are required to get the card. Kansas allows licensed private investigators to serve papers in all the state’s counties.
Skip trace
On a windy November day, Voss jumps out of her Charger when she sees that — this time — someone’s at the house.
It’s the fourth time she’s tried to serve debt collection papers on Patrick Boker Sr., who’s listed at this address in the St. Louis suburb of Woodson Terrace. On the previous trips, Voss made no contact with anyone.
She’s bound for disappointment this time, too. The man in front of the house tells her he doesn’t live there. Boker dated a woman living in the house, the man’s mother, but didn’t live there, he tells Voss in a short conversation in the middle of the street.
“It’s a skip trace,” Voss says afterward, referring to the need to find the correct address for someone who’s supposed to be served. Skip traces can be money losers for Voss. Much of the time, servers get paid even if they’re unsuccessful. But with bulk lawsuit filers like debt collection agencies, payment can depend on serving the papers, says Kellerman Investigations owner Greg Kellerman.
Voss serves her papers about 98 percent of the time, Voss says and Kellerman confirms.
She uses a combination of guile and persistence. And her appearance helps: Voss looks nothing like the burly, uniformed man you might expect to come to your door when you’re anticipating trouble in the form of a summons or service. The former personal trainer is slim, brown-eyed and 31. Her shoulder-length hair is brown, at least this month. In October she was a blonde; she changes her look frequently to keep a low profile.
“Most people who know they’re going to be served never expect a small female and no uniform,” Voss says. “That is a huge advantage.”
About 60 percent of people accept their papers; the rest dodge service, says Kyle Jones, who owns Olathe, Kan.-based Aristocrat Process Serving with his wife, Melissa. Then there are those with unusual or violent reactions. They make up a small percentage of legal paper recipients, but enough to supply Aristocrat with fodder for a monthly newsletter feature on unusual services.
Jones once found himself staring down the barrel of a shotgun. It was after dark, and the elderly woman he was serving lived down a winding country road. Jones carries a gun himself, but there’s not a really a need for it, because process servers typically talk themselves out of situations, he says.
“You put your hands up, then go from there,” Jones says.
Others in the business agree: Politeness takes you a lot farther than packing heat.
A non-aggressive approach works best, says Kimberly Brown, who is vice president of Kellerman Investigation’s software service for process servers, Service Exchange Network, or Serve-X.
Brown, who occasionally fills in as a process server, has been assaulted: She served the driver of an SUV who closed the window on her hand and dragged her.
“I’m very pro-gun, but the fact is will it help the situation or could it make it worse?” Brown says. “Most of the time when you get into situations, you’re using your wits and your smarts and your people skills. They start when you get out of the car and approach that door.”
“In every situation, a gun would have made it worse,” Kellerman adds.
Keeping safe
Voss carries $1 million in insurance coverage for lawsuits or injuries and follows a number of rules to protect herself: Be polite. Carry dog treats. Be alert. Don’t go down a dead end street. Plan an exit route. Avoid North St. Louis.
“East St. Louis doesn’t bother me,” Voss says.
She doesn’t read through all her services, but she takes a careful look at those that might be sensitive, such as domestic cases. A woman facing service for child support caused Voss’s most serious injury. Voss followed the woman from her home to a gas station. When she walked between their cars to serve the papers, the woman pinned Voss between her own car and the woman’s. A bystander freed her by backing up Voss’ car, which still had the keys in it.
Voss’ knee was broken, but she still tried to get to the woman. The incident, which happened in her first month as a process server, didn’t deter Voss.
“I like the adrenalin,” Voss said. “I like how fast-paced it is.”
Some situations tug at Voss’s heartstrings: children playing in the front yard of the house where Voss is bringing a foreclosure notice; the woman whose husband had left the house and whose car was being repossessed who wished Voss a “blessed day” after Voss served her.
“Lately it’s everybody” who gets served with debt collection or foreclosure papers, Voss says, including people with dual incomes in beautiful homes in nice subdivisions.
One of Voss’s rules for physical safety — get in and get out — also helps her keep a guard on her heart.
“Sometimes people want to tell their story,” Voss says. “Two things: I don’t have the time, and I do have a huge heart.  … If I helped everyone, I wouldn’t have a dime to my name.”
Voss made an exception, however, for an elderly woman who was renting a house in Illinois. The owner of the house was being foreclosed on. The woman cried and said she didn’t know what to do when Voss served the foreclosure papers. She had no family or friends to help out.
Voss pointed her to possible resources, and a minister found an apartment for the woman.


Rick Burrows
February 22, 2012 at 7:36 am
I agree completely with Dawn’s methods and ethics. I have been doing the same for 26+ years. I don’t have as much of a fear about North St Louis. Good luck and be safe out there to my fellow process servers.

Robert S. Prow
February 23, 2012 at 9:56 am
Great article and it really shows that there is still a very human element to the litigation process. Too much of our industry has been effected by “click and it’s done” mentality. Technology and progress are great but I hope, on many levels, that process serving remains a face-to-face encounter. Something as serious, and potentially life-changing, as a lawsuit should not be left to something as cold and inhumane as an e-mail, facebook post or tweet. Mostly, what we as process servers do is just business but, occasionally, as mentioned in this article, it can be profound. I am oftened humbled by the meek and polite nature with which so many of the unfortunate people I serve accept what I am handing them. I, too, am a person as well as a professional and, yes, a process server.

Jeff Aronson
April 11, 2012 at 3:08 pm
Great article!

I am in agreement with Mr. Burrows comment as well. I do not refuse to serve anywhere, but always use extra caution when serving in areas of high poverty. I always wear my gun (concealed) in those areas just in case.

My experiences are very much like Ms. Voss describes. Most people are not difficult to serve and are cooperative. Also not looking like you are a process server helps. Every once in a while, I have to deal with some ridiculous reactions and / or threats. North St. Louis is very difficult because people there are afraid to answer their door.
Brains and manners and people skills are our best assets.

Thanks for a good article on our profession.

Jeff Aronson
Aronson Process Service, LLC

James McCallum
September 2, 2013 at 5:56 am
I have been a process server for many years. You spend (and waste) a lot of money on gas chasing dead end leads. Your cars is always in need of expensive repairs. These servers are lucky they have not been killed or seriously injured. A police officer has a radio and back-up – you do not. In fact the Police dislike us and take their responding if they know you are a process server – again more wasted time. You are serving people from all walks of life including gang bangers, felons and molesters, many of whom do not value human life. There have been many instances of servers, constable and the like who are just shot through the door. Carry a gun – sure, but most of the time you will not see it coming. How many times do you hear of a policeman who was shot/? He is heavily armed and well trained and caught off guard. Why do I keep doing it? Familiarity and laziness to learn to do something that pays better and is safer. Find a better job.

Here are some stats. You are NOT a police officer and these people hold you in lower regard. Think about this before you decide to serve:

September 11, 2013 at 7:50 am
In many cases,just serve,asap,do not waste your time,money,etc..doing to much hunting.especially in debt collection, and high volume type law firms,the folks being serverd are highly unlikely to bring or even have the extra money,to hire a attorney for court,your serve will not be questioned.its also a waste if the persons money,he’ll be served again,and need to spend more cash on another lawyer. The dirty secret is,this approach is best,serve someone,a rep,or tape it on the door,something.skip trace has a 1 in 10 success rate.serve those papers.there is no,magic in giving the papers to the person,if 1 or 2 attempts are fruitless,sub serve etc.remember the person is highly unlikely to hire an attorney, to challenge, and gains nothing either way.frankly just serve.we,do not get paid much,we could,the law firms etc..have lots of cash, they use us,for free almost.just serve,in best way possibale,and move to next.your unlikely to ever have it challenged,especially now a days common people are not hireing a lawyer for a 2500$ debt collection, or the like.a bussiness maybe,but not Joe blow.use descretion,but this tecknieak is OK,its not a violation of joe blows rights,to take the document off his front door,or from his mom,or from his screen porch.

Michael Brown
November 25, 2013 at 10:43 pm
I totally agree that being persistent, polite and a bit street-smart can go along way in this business. This business is not for the faint of heart. When I do a serve, I just try to be professional and let them know that I am just trying to earn a living to bring money to our family’s table. I don’t do small talk. The sooner I hand the paper, the sooner I can leave, the better for everybody.

Ari Manes
January 22, 2014 at 9:54 am
Voss is totally someone to look up to. Like a lot of process servers, she could be an adrenaline junkie. But its great that she really enjoys what she does, and its something that society needs, believe it or not. Kudos to you Voss!!!! Great stories!!!!

March 20, 2015 at 4:55 pm
I responding to what jimt said. You sir, give good servers a bad name. You are a worthless server. If you did that to me, I would go after you. On debt collections, these junk debt buyers are scum buyers and you are helping these people who pray on people who can’t pay their debt. If these people don’t receive their papers, then the junk debt buyers win in court.

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Posted by on October 12, 2015 in Investigations




NO. C-11-3007 EMC.
827 F.Supp.2d 1065 (2011)

Ruby Nell FREEMAN, Plaintiff, v. ABC LEGAL SERVICES, INC., et al., Defendants.

United States District Court, N.D. California.
November 10, 2011.
Fred W. Schwinn, San Jose, CA, for Plaintiff.

Craig Sheridan Miller, William Steven Weisberg, Weisberg & Miller, David Ian Dalby, Hinshaw & Culbertson LLP, San Francisco, CA, for Defendants.


(Docket Nos. 19-22)

EDWARD M. CHEN, District Judge.

Plaintiff Ruby Freeman filed suit against Defendants ABC Legal Services Inc., and Granville Smith III. Currently pending before the Court is Defendants’ motion to dismiss, Plaintiff’s motion for discovery pursuant to Rule 56(d), and Defendants’ motion to strike Plaintiff’s state law claims pursuant to Cal. Civ. P.Code § 425.16. In consideration of the parties’ briefs and accompanying submissions, as well as oral arguments, the Court hereby DENIES Defendants’ motion to dismiss, GRANTS Plaintiff’s motion for discovery, and DENIES Defendants’ motion to strike Plaintiff’s state law claims.


Plaintiff Ruby Freeman brought an action against Defendants, ABC Legal Services Inc. (“ABC”) and Granville Smith III (“Smith”), under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”), the Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788, and California Business and Professions Code § 17200.

Ms. Freeman asserts that Defendants engaged in the following conduct: (1) manufacturing and selling a fraudulent Proof of Service of Summons that falsely stated Plaintiff was validly served; (2) encouragement, assistance and engagement in “sewer service”1; (3) ratification of fraud, perjury and breach of official duty; (4) failure to comply with California Business and Professions Code §§ 22350-22360; (5) failure to implement policies and procedures ensuring quality control of service of processes; (6) falsification of electronic signatures on service of processes; (7) aiding and abetting Defendant Smith to provide fraudulent service of processes; and (8) engagement in unfair competition in violation of California Business and Professions Code § 17200.

Plaintiff contends that she incurred a credit account which was consigned and assigned to CIR Law Office, LLP (“CIR”) for collection. First Amended Complaint (“FAC”), Docket. No. 14 ¶¶ 46, 48. Thereafter, CIR filed a lawsuit against Plaintiff in the Superior Court of Alameda County in an attempt to collect the debt.
[827 F.Supp.2d 1069]
Id. ¶ 49. Plaintiff alleges that ABC composed a false Proof of Service of Summons document on June 20, 2010, and filed it in the Superior Court of Alameda County in order to obtain a default judgment against Plaintiff. Id. ¶ 51. Although Plaintiff alleges that she was home on the alleged day of service, she asserts that she was not served personally or otherwise. Id. ¶¶ 52, 59. On October 29, 2010, CIR was granted a default judgment against Plaintiff. Id. ¶ 59. The same day, Plaintiff discovered that a judgment was entered against her. Id. ¶ 60. Consequently, Plaintiff filed a motion to set aside the judgment and CIR dismissed the state action on December 13, 2010. Id. ¶ 61.

Plaintiff alleges that Defendants are debt collectors for purposes of the FDCPA because Defendants regularly engage in the business of collecting consumer debts by assisting other debt collectors in obtaining default judgments. Id. ¶¶ 10, 11. Plaintiff adds that Defendants are not subject to the process server exemption under the FDCPA because Defendants manufactured and sold a false proof of service. Id. ¶ 4. Plaintiff explains that because Defendants allegedly failed to serve court process entrusted to them and provided a perjured Proof of Service of Summons, they are therefore removed from FDCPA’s process server exemption. Id. ¶¶ 3, 4.

In response to Plaintiff’s action, Defendants brought a motion to dismiss the FDCPA claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also brought a motion to strike Plaintiff’s state law claims pursuant to California’s anti-SLAPP statute. Plaintiff opposed the motion on the basis of Rule 56(d), which permits a plaintiff to discover information necessary to oppose summary judgment.


A. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). While “a complaint need not contain detailed factual allegations … it must plead `enough facts to state a claim to relief that is plausible on its face.'” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a `probability requirement,’ but it asks for more than sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim.” Geist v. OneWest Bank, No. C 10-1879 SI, 2010 WL 3155841, at *2 (N.D.Cal. Aug. 9, 2010). Factual allegations should be sufficient to provide Defendants fair notice of the nature
[827 F.Supp.2d 1070]
of plaintiff’s claims and the grounds on which the claims rest. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

B. Cal. Civ. P.Code § 425.16

California Civil Procedure Code § 425.16 permits a defendant to bring an anti-SLAPP motion in federal court against certain state law claims asserted by the plaintiff. This statute “was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.” Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.2001). It mandates that courts consider first, “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity”, and second, “[i]f the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (2002).

This District has previously noted that “[t]he constitutional right to petition includes the basic act of filing [suit] and is thus protected activity under Section 425.16.” Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC, 634 F.Supp.2d 1009, 1016 (N.D.Cal.2007) (quoting Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 (1999)). With respect to the second requirement mandated by § 425.16, the Ninth Circuit has held that in order to establish the probability of prevailing, “the plaintiff must show that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir.2009).

Section 425.16(g) “provides that the filing of an anti-SLAPP motion automatically stays all further discovery until the court rules on the motion.” Metabolife, 264 F.3d at 846. In short, the statute “create[s] a default rule that allows the defendant served with a complaint to immediately put the plaintiff to his or her proof before the plaintiff can conduct discovery.” Id. (quoting Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d 973, 980 (C.D.Cal. 1999)). However, when an anti-SLAPP motion is filed in federal court, Rule 56 conflicts with the statute’s provision limiting discovery.

C. Federal Rule of Civil Procedure 56(d)

Contrary to § 425.16(g), Rule 56(d)2 permits a plaintiff time to “obtain affidavits or declarations to take discovery.” Thus, while § 425.16 “was designed to allow a party defending a SLAPP action to resolve the matter as early as possible, before extensive discovery is permitted,” Rule 56(d) “was designed to ensure that a nonmoving party will not be forced to defend a summary judgment motion without having an opportunity to marshal supporting evidence.” Rogers, 57 F.Supp.2d at 981.

In resolving the conflict between § 425.16 and FRCP 56(d), the Ninth Circuit has concluded that “[b]ecause the discovery-limiting aspects of § 425.16(f) and (g) collide with the discovery-allowing aspects of Rule 56, these aspects of subsections (f) and (g) cannot apply in federal court.” Metabolife, 264 F.3d at 846. The Ninth Circuit found support in a Supreme Court decision which required that “summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,
[827 F.Supp.2d 1071]
91 L.Ed.2d 202 (U.S.1986). As a result, courts generally have held that Rule 56(d) “should be applied with a spirit of liberality.” Buchanan v. Stanships, Inc., 744 F.2d 1070, 1074 (5th Cir.1984). Thus, in the context of an anti-SLAPP motion filed in federal court, Rule 56(d) applies.

In reviewing Rule 56(d) requests, courts “have wide latitude in controlling discovery, and their rulings will not be overturned in the absence of a clear abuse of discretion.” California ex rel. California Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir.1998). However, in order to prevail on a 56(d) motion for discovery, the Ninth Circuit requires that the moving party show: “(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).

Courts are reluctant to deny Rule 56(d) requests. For example, cases in this jurisdiction suggest that unless plaintiffs failed to exercise due diligence in conducting discovery, filed an untimely Rule 56(d) request, or failed to explain how additional facts would oppose summary judgment, the request is generally granted with liberality. See McCauley v. Stanford Univ. Med. Ctr., No. C 07-1784 JF (RS), 2009 WL 650359, at *13, 2009 U.S. LEXIS 18748, at *39 (N.D.Cal. Mar. 11, 2009); 1-800-Bar None v. Brandow’s Fairway Chrysler Jeep, Inc., No. C 06-5507 CW, 2007 WL 39372 at *10, 2007 U.S. Dist. LEXIS 3087 at *27-28 (N.D.Cal. Jan. 4, 2007). This is especially true when the request is filed at such an early juncture of the case. See Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir.2003) (When “a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56(f) motion fairly freely.”). Therefore, this Court must apply Rule 56(d) factors in order to review Plaintiff’s request for discovery.


A. FDCPA Claim

The purpose of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 is to eliminate abusive debt collection practices by debt collectors. § 1692(e). In order to state a claim under the FDCPA, a plaintiff must show: 1) that he is a consumer; 2) that the debt arises out of a transaction entered into for personal purposes; 3) that the defendant is a debt collector; and 4) that the defendant violated one of the provisions of the FDCPA. See Creighton v. Emporia Credit Service, Inc., 981 F.Supp. 411, 414 (E.D.Va.1997). Plaintiff and Defendants agree that Plaintiff is a consumer and that the alleged debt arose out of a transaction entered into for personal purposes. They disagree as to the last two elements of the FDCPA claim.

1. Definition of Debt Collector

In order to be liable for an FDCPA violation, a defendant must be a debt collector. § 1692(e). The FDCPA defines the term “debt collector” as any person whose principal purpose of business is to collect debts or any person who regularly collects or attempts to collect, directly or indirectly, debts owed or due to another. § 1692a(6). The term “debt collector” is not limited to formal debt collection agencies and can, for example, apply to a lawyer who regularly, through litigation, tries to enforce consumer debts. Heintz v. Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).

[827 F.Supp.2d 1072]
The FDCPA also carves out some exceptions to the term “debt collector.” § 1692a(6)(A)-(F). It excludes “any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” § 1692a(6)(D). However, a person “who goes beyond being merely a messenger in serving legal process and engages in prohibited abusive or harassing activities to force an individual to repay a debt is no longer exempt under the legal process server exception.” Flamm v. Sarner & Associates, P.C., No. 02-4302, 2002 WL 31618443, at *5 (E.D.Pa. Nov. 6, 2002).

a. Debt Collector

Any person who regularly collects or attempts to collect debt, directly or indirectly, is a “debt collector” within the FDCPA. § 1692a(6). In Romine v. Diversified Collection Servs., 155 F.3d 1142, 1146 (9th Cir.1998), the Ninth Circuit recognized that “one need not gain possession of a debt, or personally benefit financially from the satisfaction of a debt, in order to assume liability as a `debt collector’ under the FDCPA.” In Romine, defendant Western Union sent debtors notices that they had received personal telegrams, but when debtors called to retrieve their messages, they required the debtor to first provide their telephone number. Id. at 1144. After securing this information, Western Union would read aloud the debt collection message that had been provided by the creditor and would then forward the previously unlisted numbers to the debt collection agency. Id. Even though Western Union was a third-party not directly benefitting from the debt collection practice, the court held that its role in the process could qualify as an indirect debt collection activity under the FDCPA. Id. at 1149.

The legislative history of the FDCPA states that “the requirement that debt collection be done `regularly’ would exclude a person who collects debt for another in an isolated instance, but would include those who collect for others in the regular course of business.” S.Rep. No. 95-382, 95th Cong. 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697-98. Western Union’s service, in Romine, was advertised as being specially developed for the credit and collections industry and the service was well publicized as such. This was enough to find that Western Union’s service was in the regular course of business and not an isolated occurrence. Id. at 1146.

Plaintiff alleges that, like Romine, Defendants are also third parties in the business of indirectly collecting consumer debts by assisting other debt collectors in obtaining default judgments in their civil debt lawsuits. She alleges that ABC does this by employing and inducing registered process servers, such as Smith, to file false Proof of Service.3 Debt collectors can then obtain default judgments when debtors fail to appear in court. Plaintiff alleges that Defendants have composed and sold false and misleading Proof of Service of Summons documents more than forty times in California in the year preceding the filing of her complaint, and therefore this is not an isolated occurrence. FAC ¶ 67. Plaintiff also alleges that ABC advertises and markets process service and other legal support services to attorneys, law firms, and debt collectors. FAC ¶ 21.

This Court finds that Plaintiff has sufficiently pled that Defendants’ actions were those of a “debt collector” as defined by
[827 F.Supp.2d 1073]
the FDCPA. Plaintiff’s statements that “sewer service” occurred forty other times is sufficient to properly allege that Defendants “regularly” engage in debt collection activity under the FDCPA. Furthermore, like Romine, ABC’s purported advertising and marketing of process service to debt collectors, see FAC ¶ 21, suggests they target at least some of their service of legal process to assist debt collectors in their debt collection actions. ABC’s “sewer service” facilitates and aids debt collectors.

In the section defining who is a debt collector, the FDCPA states that “[t]he term does not include … any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” § 1692a. Moreover, the fact that the FDCPA specifically exempts process servers from being debt collectors indicates that without this special exemption, suggests that the service of legal process in debt collection actions is generally considered an indirect form of debt collection under the FDCPA. See Spiegel v. Judicial Atty. Servs., No. 09 C 7163, 2011 WL 382809, at *1 (N.D.Ill. Feb. 1, 2011) (finding that a process server who engages in sewer service such that their process server exemption is lifted, is per se liable under the FDCPA); see also Sykes v. Mel Harris and Associates, LLC., 757 F.Supp.2d 413 (S.D.N.Y.2010) (treating a process server whose conduct lifted the exemption as a debt collector without further analysis). It is the specific exemption in the statute that saves process servers from FDCPA liability. It follows that a process service company like ABC or an individual process server like Smith, who legally and properly serves process in connection with the enforcement of a debt on a regular basis, would also be a debt collector but for the FDCPA’s exemption. Accordingly, regardless of whether the Defendants filed false affidavits, the service of process they provide on behalf of other debt collectors alone is enough to be a regular attempt to collect debt. Thus, the Court concludes that Plaintiff has pled sufficient factual content to draw the reasonable inference that ABC and Smith are debt collectors as defined by the FDCPA.

b. Process Server Exemption

As the court noted above, the FDCPA explicitly exempts from the term debt collector “any person while serving process or attempting to serve legal process in connection with the judicial enforcement of any debt.” § 1692a(6)(D). However, when someone who would otherwise qualify for the exemption “goes beyond being merely a messenger in serving process and engages in prohibited abusive or harassing activities to force an individual to repay a debt,” the exemption no longer applies and the process server is subject to FDCPA liability. Flamm, 2002 WL 31618443, at *5. In Flamm, the court found that certain conduct could remove a process server from the exemption’s protections.

Defendants argue they fall under the process server exemption because Smith is a registered process server, ABC was hired by CIR to serve Plaintiff with summons and complaint, and ABC retained the services of Smith in order to do this. Plaintiff even refers to Defendants as “process servers” in the FAC. FAC ¶ 64.

Plaintiff, however, insists that the process server exemption does not apply in this case for two reasons: (1) The statute only protects process servers while they serve process, and since Plaintiff alleges that Defendants did not actually engage in service, but instead filed perjured affidavits of service, they do not qualify for the exemption, and (2) Defendants’ egregious “sewer service” practice renders them ineligible for the exemption. Plaintiff’s position is supported by several cases. In
[827 F.Supp.2d 1074]
Sykes, the court held that the alleged failure of defendants to serve plaintiffs process would remove them from the process server exemption and their conduct would therefore be actionable under the FDCPA. 757 F.Supp.2d at 423. Similarly, the court in Spiegel followed Sykes and held that if process servers falsely claimed they had effected personal service and executed a false proof of service document, then their actions would take them beyond their role as process servers and render them ineligible for the exception. 2011 WL 382809 at *1. Spiegel suggests that the execution of one false proof of service would be enough to forfeit the process server exemption. Id. (discussing just one plaintiff’s allegation of “sewer service” and finding that it would not be subject to the exemption). In addition, in Blackburn v. ABC Legal Services, 3:11-CV-01298-JSW, No. 22, at 7 (N.D.Cal. June 16, 2011), a case nearly identical to the one at bar, Judge White found “a review of Plaintiff’s complaint reveals that she alleges sufficient facts to state a claim under the FDCPA,” and thus denied ABC’s motion to dismiss. The plain text of the statute supports this interpretation.

The exemption only protects “any person while serving or attempting to serve” process. § 1692a(6)(D) (emphasis added).

Plaintiff’s position is further supported by the FDCPA’s legislative history, which clarifies that it was passed in part to protect consumers from unfair and deceptive debt collection practice. S.Rep. No. 95-382, at 1. Specific examples of what constitutes collection abuse includes “simulating legal process.” Id. “Utilizing bogus legal documents” is another of the enumerated practices that would violate the Act. Id. at 7. Additionally, the legislative history emphasizes that the reason for prohibiting in general terms any harassing, deceptive, and unfair debt collection practices is to “enable the courts, where appropriate, to proscribe other improper conduct which is not specifically addressed.” Id. at 4.

Accordingly, the Court finds that Plaintiff has sufficiently alleged that Defendants engaged in the practice of “sewer service” so as to forfeit the process server exemption. As alleged, ABC advertises its process service to debt collectors and then induces process servers, like Smith, to file false Proofs of Service, by paying them substantially less for service that is not complete. FAC ¶ 62. Plaintiff also alleges that Smith provides ABC with his facsimile signature, and ABC used this to produce the fraudulent Proof of Service of Summons like the one that CIR paid for. FAC ¶ 28. Plaintiff further alleges that ABC knew that fraud, perjury, and breach of official duty were being committed by Smith, and ABC approved and encouraged this conduct by continuing to employ Smith and give him process server assignments even after learning he had engaged in “sewer service.” FAC ¶¶ 29, 37-39. Although just one instance of “sewer service” is arguably enough to forfeit the exemption, Plaintiff’s allegation that his has occurred over forty times makes the contention that this was a fraudulent operation much more plausible. FAC ¶ 67.

At oral argument, Defendants contended that service of process is judicially supervised and therefore it is inappropriate to bring this type of claim under the FDCPA. They point to Argentieri v. Fisher Landscapes, Inc., 15 F.Supp.2d 55, 62 (D.Mass. 1998), in which a debt collector’s attorney incorrectly asked the court for attorney’s fees in the original complaint. Id. at 58. In Argentieri, the court held there was no need to invoke the protections of the FDCPA for a potentially abusive claim in a pleading since the court has its own system of protection against abusive tactics that occur during litigation. Id. at 62. However, unlike this case, in Argentieri the remedy could be obtained based on the
[827 F.Supp.2d 1075]
face of the pleadings before the court. Here, Plaintiff alleges that Defendants engaged in fraud not facially apparent within the four corners of the pleading. Judicial supervision is made problematic by the fact that proof of fraud requires extrinsic evidence. The Court thus finds Argentieri inapposite to the case at bar.

c. Evidentiary Presumptions and Prima Facie Evidence

Defendants argue further that Plaintiff cannot state a claim for relief because she cannot overcome the presumption that she was properly served. A signed return of service by a registered process server constitutes prima facie evidence of valid service, which can be overcome only by strong and convincing evidence. SEC v. Internet Solutions for Bus., Inc., 509 F.3d 1161, 1163 (9th Cir. 2007); Cal. Bus. & Prof.Code §§ 22350, 22356. The burden of producing strong and convincing evidence to rebut this presumption cannot be met by a mere conclusory denial of service. Harry and David v. Pathak, No. 09-3013-CL, 2009 WL 2579136, at *3 (D.Or. Aug. 19, 2009) (quoting Resolution Trust Corp. v. Bowen, No. CV-92-1671-PHX-PGR, 2008 WL 2001270, at *2 (D.Ariz. May 7, 2009)) (citing S.E.C., 509 F.3d at 1166).

Defendants argue that it is impossible for Plaintiff to meet this burden since Smith’s Proof of Service of Summons (Original Complaint, Docket No. 1 Exhibit 1) constitutes prima facie evidence of valid service. Although Plaintiff has alleged that she was not served, FAC ¶ 52, a mere allegation that process was not served without an additional showing of evidence is insufficient to refute the validity of an affidavit of service. Collagen Nutraceuticals, Inc. v. Neocell Corp., No. 09-CV-2188-DMS(WVG), 2010 WL 3719101, at *2 (S.D.Cal. Sept. 20, 2010) (plaintiff who provided a declaration that physical access to her property was not possible because of two locked gates and also provided a recent photo of herself to show she looked physically different from what was indicated on the Proof of Service failed to demonstrate strong and convincing evidence to rebut process server’s declaration).

However, when deciding a motion to dismiss under 12(b)(6), only the Plaintiff’s allegations contained in her pleading is challenged, not her evidence. See al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir.2009). Thus, as long as the complaint provides fair notice of the nature of the claims and grounds on which the claims rest, it need not include all of the facts necessary to carry the Plaintiff’s burden. Id. Plaintiff has alleged that she was not served, and the Court is bound to accept that allegation as true. FAC ¶¶ 52, 76. Therefore, notwithstanding the evidentiary burden Plaintiff will face in proving allegation, she has sufficiently alleged that she was not served with process.

2. Violation of an FDCPA Provision

In order to satisfy the final requirement for stating a valid FDCPA claim, Plaintiff must show that Defendants violated at least one of the FDCPA provisions. Creighton, 981 F.Supp. at 414. Plaintiff alleges that Defendants violated § 1692d, § 1692e, and § 1692f of the FDCPA. Section 1692d prohibits “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” Section 1692e prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Section 1692f prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt.”

In this case, the same factual allegations of “sewer service” discussed above form the basis for alleging an FDCPA violation. See Sykes, 757 F.Supp.2d 413 (finding sewer
[827 F.Supp.2d 1076]
service allegations stated a claim for violations of sections 1692d, 1692e, and 1692f of the FDCPA); Blackburn, 3:11-CV-01298-JSW, No. 22 (denying motion to dismiss under sections 1692d, 1692e, and 1692f of the FDCPA based on sewer service allegations); Spiegel, 2011 WL 382809 *1 (denying motion for summary judgment where sewer service was alleged to violate FDCPA § 1692 et seq.); see also S.Rep. No. 95-382 at 1, 4, 7 (defining debt collection abuse to include “simulating legal process,” expressly prohibiting practices such as “simulating court process,” and indicating that “utilizing bogus legal documents” is prohibited as a false or misleading representation to collect debt). Thus, the Court concludes Plaintiff has adequately alleged violations of the FDCPA.

3. Vicarious Liability

Defendant ABC argues that it cannot be held liable for Defendant Smith’s conduct. Plaintiff alleges that, in addition to ABC’s direct liability for “sewer service,” ABC is also vicariously liable for Smith’s act of filing false Proof of Service because Smith’s conduct should be imputed to ABC.

Although the FDCPA does not expressly address vicarious liability, courts have held that vicarious liability may obtain where both parties are debt collectors. See Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir.1994) (debt collection company could be held liable for the conduct of their attorney where both were considered debt collectors under the FDCPA); Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir.1996) (“The FDCPA imposes liability only on a debt collector, not on nondebt collectors, such as consumer creditors or an assignee of a debt.”); Pollice v. National Tax Funding, 225 F.3d 379, 404 (3d Cir.2000) (vicarious liability under the FDCPA will be imposed for an attorney’s misconduct if the client is itself a debt collector as defined in the statute). The rationale behind vicarious liability in this context is that if an entity is a debt collector and hence subject to the FDCPA, it should bear the burden of monitoring the activities of those it enlists to collect debts on its behalf. Pollice, 225 F.3d at 405. Since Plaintiff has adequately alleged, for purposes of this 12(b)(6) motion, that ABC and Smith are both debt collectors, ABC may be held vicariously liable for Smith’s acts if Plaintiff can prove that Smith was under the control of ABC.

ABC insists they are not liable for Smith’s actions because he is an independent contractor. However, the chief test in determining whether one is an employee or independent contractor is the right of the principle to control the manner or means of performing work. Lamar, 2006 WL 2422903, at *9. In the instant case, Plaintiff sufficiently alleges that ABC effectively controls their process servers, including Smith, by choosing their assignments, requiring personal performance tasks, restricting the substitution or assignment of their performance or assigned tasks, requiring them to use a GPS tracking device, requiring detailed time reporting, and requiring the use of ABC’s computer systems and software. FAC, Docket No. 14 ¶ 30. Plaintiff has alleged enough facts to create a reasonable inference that ABC does control the manner in which Smith performs work and is therefore vicariously liable.

Accordingly, the Court DENIES Defendants’ motion to dismiss.

B. Plaintiff’s Request for a Continuance Pursuant to Rule 56(d)

As the Court noted above, Defendants also brought a motion to strike Plaintiff’s state law claims pursuant to California’s anti-SLAPP statute. However, because Rule 56(d) prevails over § 425.16
[827 F.Supp.2d 1077]
as discussed above, the Court must first address Plaintiff’s request for discovery. Under Rule 56(d), if Plaintiff can identify the specific facts she seeks to obtain from discovery, show that they exist, and explain how they would be necessary to oppose summary judgment, further discovery is appropriate before adjudicating an anti-SLAPP motion to strike. See Family Home & Fin. Ctr., Inc., 525 F.3d at 827.

In the instant case, Plaintiff sets forth the following facts she hopes to elicit from further discovery: (1) movements of Defendant on the alleged day of service; (2) documents and computer data showing all completed service of process and unsuccessful service attempts from January 1, 2010 to the present; (3) ABC’s policies for training and hiring service agents; (4) policies on quality control of electronic signatures; (5) procedures in compliance with California Business and Professions Code; (6) pricing schedules for Mr. Smith and other process agents; and finally (7) Mr. Smith’s general record of service of process. Opposition to Defendants’ Motion to Strike (“Opp. to Strike”), Docket No. 24 at 4.

Defendants oppose the request for discovery by offering declarations and affidavits that state Plaintiff was served on June 19, 2010. The evidence includes: a declaration from Defendant Smith attesting to valid service; declarations from ABC’s management averring that it is not in the interest of their business to engage in producing false service of processes; and exhibits that detail Smith’s serves on June 19, 2010, including Plaintiff’s. In essence, Defendants argue that Plaintiff has already received all the necessary and available evidence regarding Plaintiff’s service on June 19, 2010, and that Plaintiff therefore cannot overcome the `clear and convincing’ standard required by the Ninth Circuit in proving that she was not served. Defendants’ Reply in Support of Mot. to Strike, Docket No. 30 at 6 (citing SEC v. Internet Solutions for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir.2007)).

However, such an argument is not sufficient to overcome Plaintiff’s right to discovery at such an early stage of the proceedings, given the evidence Plaintiff seeks to elicit in discovery and the facts Plaintiff has already addressed suggesting there is a factual basis for her assertion of “sewer service.” During oral argument and in a supplemental declaration, Plaintiff pointed out that Defendants’ record on June 19, 2010, showed Defendant Smith simultaneously completed two different serves, in two different locations. Tanabe Decl., Docket No. 31, at 14. Mr. Tanabe’s declaration also stated that after replicating Defendant Smith’s route, he found it would have been impossible to complete the alleged number of serves on June 10, 2010. Tanabe Decl. at 5. This demonstrates that further information is needed regarding Plaintiff’s allegedly false service that could rebut Defendants’ contention that she was served. Cf. SEC v. Internet Solutions for Bus. Inc., 509 F.3d 1161 (9th Cir.2007) (finding that plaintiff could not rebut the presumption that she was properly served because defendant’s signed proof of service constituted prima facie evidence of service and plaintiff offered no evidence to the contrary). Furthermore, Defendants have not produced the policies and procedures ABC implements to train and supervise their servers, or procedures that show their business is in compliance with the California Business and Professions Code. If discovered, such evidence could assist Plaintiff in opposing summary judgment by demonstrating, e.g., that ABC is vicariously liable for Smith’s conduct, or that ABC was knowingly engaging in sewer service.

Plaintiff thus justifies any failure to offer a “sufficient prima facie showing of facts,” Kearney, 590 F.3d at 648, on the
[827 F.Supp.2d 1078]
basis that no discovery has been conducted at this stage, initial disclosures have not been exchanged, and a Rule 26(f) discovery planning conference has not occurred. Opp. to Strike at 6. The Court agrees. In order to prevent premature summary judgment. Plaintiff must be afforded an opportunity to discover further evidence before she is required to oppose Defendants’ anti-SLAPP motion.

This Court recognizes that “the mere hope that further evidence may develop prior to trial is an insufficient basis for a continuance under Fed.R.Civ.P. 56[(d)].” Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978). However, in the instant case, Plaintiff has identified relevant information that she seeks to discover in order to oppose summary judgment. Previous cases in this Court suggest that where plaintiffs failed to exercise due diligence, filed an untimely request, or failed to explain why discovery was not conducted, Rule 56(d) discovery requests may be denied. See McCauley v. Stanford Univ. Med. Ctr., No. C 07-1784 JF (RS), 2009 WL 650359, at *13, 2009 U.S. LEXIS 18748, at *39 (N.D.Cal. Mar. 11, 2009) (after waiting a year and a half to take depositions and failing to specify the significance of the information sought the court concluded “[plaintiff] hopes to go on a fishing expedition in search of some admissible evidence to support her claims.”); 1-800-Bar None v. Brandow’s Fairway Chrysler Jeep, Inc., No. C 06-5507 CW 2007, 2007 WL 39372, at *10, U.S. Dist. LEXIS 3087 at *27-28 (N.D.Cal. Jan. 4, 2007) (“Defendants cannot prove that they pursued discovery, diligently before the motion for summary judgment…. `movant cannot complain if it fails to pursue discovery diligently before summary judgment.'”). In contrast, in the instant case, Plaintiff requests discovery at an early juncture of the proceedings before any opportunity to conduct discovery and there is no showing of lack of diligence. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (“summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”).

Accordingly, the Court concludes that Plaintiff has demonstrated a need for discovery before opposing summary judgment on her state law claims.


For the foregoing reasons, Defendants’ motion to dismiss is DENIED. Plaintiff has pled sufficient facts to state a claim to relief that is plausible under the FDCPA. The Court also GRANTS Plaintiff’s motion for discovery and DENIES without prejudice Defendants’ request to strike Plaintiff’s state law claims.

This order disposes of Docket Nos. 19, 20, 21 and 22.



1. Sewer service is defined as “failing to serve a debtor and filing a fraudulent affidavit attesting to service so that when the debtor later fails to appear in court, a default judgment is entered against him.” Spiegel v. Judicial Atty. Servs., 2011 WL 382809, 2011 U.S. Dist. LEXIS 9350 (N.D.Ill. Feb. 1, 2011).
2. Formerly Rule 56(f).
3. The FAC alleges that process servers are induced to file False Proof of Service because ABC pays them substantially less or nothing at all for service that is not reported as complete. FAC ¶ 62.

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Posted by on October 12, 2015 in Investigations



PICARD V. ABC LEGAL SERVS., INC.•10 Case No. 5:14-cv-04618-RMW (N.D. Cal. Jun 01, 2015)
Case No. 5:14-cv-04618-RMW (N.D. Cal. Jun 01, 2015)
Ronald M. Whyte United States District Judge

Re: Dkt. No. 28

This case arises out of plaintiff’s allegations that defendants engaged in “sewer service,” a practice whereby a proof of service is filed in court stating that a party has been served when in reality no service has occurred. As a result of the falsified proof of service, default and default judgment are entered against the unaware party. Plaintiff asserts that he is a victim of defendants’ “sewer service.” Defendant ABC Legal Services, Inc. (“ABC”) moves for summary judgment on plaintiff’s Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., and Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), Cal. Civil Code § 1788 et seq. claims. Dkt. No. 28 (“Mot.”). For the reasons explained below, the court DENIES the motion for summary judgment.

Plaintiff Derek Picard (“Picard”) allegedly incurred consumer debt issued by Citibank, N.C. Dkt. No. 1 (“Compl.”) at ¶ 44. Picard defaulted on the debt, and the debt was transferred to Unifund CCR, LLP for collection. Id. at ¶ 46. The debt was then assigned to the Law Offices of Kenosian & Meile, LLP (“The Law Offices”) for collection. Id. at ¶ 47. The Law Offices filed a lawsuit against Picard in the Superior Court of Santa Clara County, captioned Unifund CCR., LLC v. Derek Picard, et al., and assigned Case No. 1-13-CV-253764, in an attempt to collect the defaulted consumer debt. Id. at ¶ 48. The Law Offices hired ABC, and ABC contracted with Marcos Tejada (“Tejada”) to serve legal process in the state court action. Id. ¶ 49. Picard alleges that defendants filed a fraudulent Proof of Service of Summons in connection with the state court action. Id. at ¶ 52. Picard submits that defendants’ fraudulent filing constituted a violation of both the FDCPA and RFDCPA.

Picard alleges that a process server (presumably Tejada) came to the home of his brother Adam and attempted to serve Derek Picard at that address. Picard’s brother Adam filed a declaration stating that Picard never lived at the brother’s address, and that “a man came to our door asking for my brother, Derek. I informed the man that Derek did not live at my address. The man did not leave any papers with me for Derek. The man never came back, and no other person has come to my home to give papers to Derek.” Dkt. No. 34 (“Adam Picard Decl.”) at ¶¶ 4-6.

On February 11, 2014, four months after defendants composed and filed an allegedly false Proof of Service of Summons in the state court action, The Law Offices requested and was granted a Default Judgment by the Clerk of the Superior Court based on defendants’ false process server’s return. Compl. at ¶ 58. “On or about July 11, 2014, Plaintiff was required to file, at his own expense, a Motion to Set Aside the state court Entry of Default and Default Judgment that had been entered against Plaintiff in the state court action based on Defendants’ false Proof of Service of Summons. On or about August 7, 2014, the state court set aside and vacated the Entry of Default and Default Judgment against Plaintiff by stipulation of the parties.” Id. at ¶¶ 61-62.

Picard further alleges that “Defendants have composed and sold false and misleading Proof of Service of Summons documents in the form of Exhibit ‘1’ more than 40 times in California in the one year preceding the filing of this Complaint.” Id. at ¶ 68. No evidence has been offered supporting this allegation but plaintiff has not undertaken discovery.

Picard brings this action seeking relief under the FDCPA and the RFDCPA. Defendant ABC seeks summary judgment based upon its contention that it cannot be held liable as a matter of law under the FDCPA or RFDCPA.

A. Defendant’s Arguments
In support of its motion for summary judgment, defendant ABC argues that, as a matter of law, neither it nor Tejada is a debt collector under the FDCPA, and even if they were deemed to fit the definition of a debt collector, they are exempt because the FDCPA’s process server exclusion protects them from liability. Defendant further argues that under the RFDCPA they are similarly not debt collectors, and, in any event, they are shielded from liability by California’s litigation privilege set forth in Cal. Civil Code § 47(b). Finally, defendant argues that Picard was validly served such that there has been no violation of the FDPCA or RFDCPA.

As explained in more detail below, defendant ABC’s legal arguments fail for reasons explained in prior cases from this district. See Freeman v. ABC Legal Servs. Inc., 827 F. Supp. 2d 1065 (N.D. Cal. 2011); Ansari v. Elec. Document Processing Inc., No. 5:12-CV-01245-LHK, 2013 WL 4647621 (N.D. Cal. Aug. 29, 2013); Long v. Nationwide Legal File & Serve, Inc., No. 12-CV-03578-LHK, 2013 WL 5219053 (N.D. Cal. Sept. 17, 2013). Defendant’s additional argument is that it makes no difference whether defendants are debt collectors or are protected by California’s litigation privilege because Picard was properly served. Defendant’s argument fails, however, because there are material facts in dispute over whether Picard was validly served. Accordingly, the court DENIES the motion for summary judgment.

B. Legal Standard on Summary Judgment
Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly probative,” the court may grant summary judgment. Id. at 249-50 (citation omitted). At the summary judgment stage, the court “does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60 (2006).

The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 323. To meet its burden, “the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). Once the moving party has satisfied its initial burden of production, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.

C. Defendants are Debt Collectors Under the FDCPA and the RFDCPA
1. Debt Collector Under FDCPA
“In order to state a claim under the FDCPA, a plaintiff must show: 1) that he is a consumer; 2) that the debt arises out of a transaction entered into for personal purposes; 3) that the defendant is a debt collector; and 4) that the defendant violated one of the provisions of the FDCPA.” Freeman, 827 F. Supp. 2d at 1071. Defendant ABC does not dispute that Picard is a*5consumer and that his debt was for personal purposes. It also acknowledges that it and Tejada are process servers, but disputes that they should be considered debt collectors. Mot. at 5-6; Dkt. No. 32 (“Carrigan Decl.”) at ¶ 6 (“ABC Legal Services, Inc.’s business is divided into three primary categories: (1) service of process; (2) messenger services; (3) Court Filing documents . . .”).

The FDCPA defines a “debt collector” as:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). ABC, by serving process for actions seeking to collect debts and preparing and filing proofs of service on behalf of creditors, is, at a minimum, collecting or attempting to collect, “directly or indirectly, debts owed or due or asserted to be owed or due another.” Id. (emphasis added); Freeman, 827 F.Supp. 2d at 1072-3; see Long, 2013 WL 5219053, at *14 (finding process server was a debt collector, and noting “[t]he language and the legislative history of the FDCPA suggest that an entity qualifies as a ‘debt collector’ if it regularly performs debt collection services, regardless of what percentage of its services relate to debt collection.”). Therefore, ABC and Tejada are debt collectors unless they are exempt under what has been described as the “process server exemption.”
2. The Process Server Exemption in the FDCPA
The fact that the FDCPA specifically exempts process servers from the definition of debt collectors bolsters the conclusion that, without this exemption, the service of legal process in debt collection actions would be considered a form of debt collection under the FDCPA. However, defendant ABC argues that regardless of whether defendants are debt collectors, the exemption applies and defendants are exempt from liability under the FDCPA. The exemption provides that the term “debt collector” “does not include … any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” 15 U.S.C. § 1692a(6)(D).

Picard asserts that the defendants are not protected by the exemption because, although they never properly served Picard, they filed with the court a false affidavit saying they had served him.

Courts have held that the process server exception does not apply in cases where the plaintiffs can show that the defendants were not bona fide process servers. See Freeman v. ABC Legal Services, Inc., 827 F.Supp.2d 1065, 1073 (N.D.Cal.2011); Flamm v. Sarner & Associates, P.C., No. 02-4302, 2002 WL 31618443, at *5 (E.D.Pa. Nov. 6, 2002); Holmes v. Electronic Document Processing, No. 12-CV-06193-LHK, at *5-6 (N.D.Cal. Aug. 15, 2013). Specifically, when a process server files a false service of process, then their actions “take[ ]them beyond their role as process servers and render [ ] them ineligible for the [process server] exception.” Spiegel v. Judicial Atty. Servs., No. 09-7163, 2011 WL 382809, at *1 (N.D.Ill. Feb. 1, 2011).
Ansari, 2013 WL 46472at *7.
In Freeman, the court directly dealt with the issue of whether ABC was acted within the protection of the process server exemption when it engaged in sewer service:

This Court finds that Plaintiff has sufficiently pled that Defendants’ actions were those of a “debt collector” as defined by the FDCPA. Plaintiff’s statement that “sewer service” occurred forty other times is sufficient to properly allege that Defendants “regularly” engage in debt collection activity under the FDCPA. Furthermore, like Romine, ABC’s purported advertising and marketing of process service to debt collectors, see FAC ¶ 21, suggests they target at least some of their service of legal process to assist debt collectors in their debt collection actions. ABC’s “sewer service” facilitates and aids debt collectors.
Freeman, 827 F. Supp. 2d at 1072-73.
Plaintiff also maintains that defendants were not acting as process servers because they allegedly “manufactured and sold” false proofs of service to debt collectors with the goal of obtaining default judgments against the debtors and preventing the debtors from contesting the state court suit. Compl. ¶ 21. In support of this contention, Picard alleges that ABC “knowingly promotes” its process servers to engage in false reports of service through its fee payment systems. Compl. ¶¶ 63-65. Picard argues that ABC engaged in this conduct with the intent of coercing*7debtors such as him into paying their debts in violation of the FDCPA.

The cases cited by Picard involve motions to dismiss where mere allegations can prevent dismissal. Here, we are dealing with ABC’s motion for summary judgment. Picard’s allegations that ABC engaged in “sewer service” lack evidentiary support and, therefore, cannot be used to defeat summary judgment. However, Picard is entitled to do some limited discovery to develop evidentiary support for his allegations which the court assumes were made in accordance with Federal Rule of Civil Procedure 11. See Opp. at 13 (requesting discovery under Rule 56(d)).

3. Debt Collector Under RFDCPA
The RFDCPA defines a “debt collector” as “any person who, in the ordinary course of business, regularly, on behalf of . . . others, engages in debt collection. The term includes any person who composes and sells, or offers to compose and sell, forms, letters, and other collection media used or intended to be used for debt collection. . . . Cal.Civ. Code §1788.2(c). The term “debt collection” means any act or practice in connection with the collection of consumer debts. Cal.Civ. Code §1788.2(b). ABC and Tejada perform acts in connection with the collection of debts. There is no exemption for process servers under the RFDCPA.

D. California’s Litigation Privilege
Defendants contend that California’s litigation privilege bars Picard’s state law claim under the RFDCPA. See Mot. at 6. Under California law, publications made in the discharge of an official judicial duty are privileged and cannot be the basis for the imposition of legal liability. Cal. Civ. Code § 47(b). Defendants argue that the alleged filing of a false proof of service is privileged and therefore that Picard may not use that filing against defendants.

The California Supreme Court has held that the litigation privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006). “The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the*8courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.” Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App. 4th 324, 336 (2009) (quoting Rusheen, 37 Cal. 4th at 1063) (internal quotation marks omitted).

Applying the privilege, the California Supreme Court in Rusheen struck an abuse of process claim and held that, “where the gravamen of the complaint is a privileged communication (allegedly perjured declarations of service) the privilege extends to necessarily related acts (act of levying).” Rusheen, 37 Cal. 4th at 1062.

The California Court of Appeal, however, has recognized that “the [litigation] privilege cannot be used to shield violations of the [RFDCPA].” Komarova, 175 Cal. App. 4th at 337. The Court of Appeal in Komarova recognized that there is a split of authority among federal district courts with respect to whether the litigation privilege bars RFDCPA claims. See id. at 337. The Court of Appeal in Komarova adopted the majority view among the federal district courts that if the litigation privilege and RFDCPA conflict, then the RFDCPA must prevail. Id. at 337-38; see also Cabral v. Martins, 177 Cal. App. 4th 471, 488 (2009) (approving of the “methodology” in Komarova and extending the reasoning to analyze whether a different California statute prevails over the litigation privilege). The Court of Appeal reasoned that applying the litigation privilege in favor of the RFDCPA “would effectively vitiate the Rosenthal Act and render the protections it affords meaningless.” Id. at 338. As a result, the Court of Appeal “applie[d] the familiar principle of statutory construction that, in cases of irreconcilable conflict, the specific statute prevails over the general one” and exempts the RFDCPA from protections of the litigation privilege. Id. (quoting Oie v. N. Star Capital Acquisitions, L.L.C., 486 F. Supp. 2d 1089, 1100 (C.D. Cal. 2006)); see also Ansari, 2013 WL 4647621 at *9-10.

Defendants acknowledge Komarova, but argue that Johnson v. JP Morgan Chase Bank, 536 F. Supp. 2d 1207 (E.D. Cal. 2008) and Smith v Fireside Thrift Company, Case No. 07-CV-*903883-WHA, 2007 WL 2729329 (N.D. Cal. 2007) provide “a more nuanced analysis.” Mot. at 8. Reply at 8. First, Johnson and Smith were decided before the California state court decided Komarova. “What is notable is that since the issuance of Komarova —i.e., the sole published decision by a California appellate court to address this issue—not a single federal court has found Rosenthal Act claims to be barred by the litigation privilege.” Huy Thanh Vo v. Nelson & Kennard, 931 F. Supp. 2d 1080, 1097 (E.D. Cal. 2013).

Second, Smith has been distinguished by Ansari, which noted that “[w]hile the plaintiff in Smith did allege a violation of the RFDCPA, the defendant there did not move to strike the RFDCPA claim. The court therefore had no opportunity to discuss the interaction between the litigation privilege and the RFDCPA.” Ansari, 2013 WL 4347621 at *9 (citation omitted).

Finally, Johnson actually supports Picard, because Johnson held that “[w]here the Rosenthal Act and the litigation privilege conflict, then the Rosenthal Act, as the more specific statute, prevails over the more general litigation privilege. . . .[T]he statutes are not irreconcilable if the plaintiff fails to state a Rosenthal Act claim, or alleges activity outside of the litigation context.” 536 F. Supp. 2d at 1211-12. Here, Picard has presented enough evidence for a reasonable fact finder to conclude that defendants’ violated the RFDCPA by filing a false proof of service. See also Ansari, 2013 WL 4347621 at *10. Accordingly, the court cannot determine as a matter of law that defendants’ actions are protected by California’s litigation privilege.

E. There are Material Issues of Fact as to Whether Plaintiff Was Properly Served
The parties dispute whether Picard was properly served. The proof of service at issue here states that Tejada served copies of the summons and complaint, and other documents related to the state collection case, on “John Doe, CO-RESIDENT, who accepted service, with identity confirmed by verbal communication, a white male approx… 25-35 years of age, 5’4″-5’8″ tall, weighing 160-180 lbs with brown hair.” Dkt. No. 31 (Tejada Decl. Ex. B).

Defendants rely on California Code of Civil Procedure § 415.20(a), which permits service by “leaving a copy of the summons and complaint . . . at his or her usual mailing address. . . with*10the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first- class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” Defendants contend, and Picard does not actually dispute, that Picard’s “usual mailing address” was his brother’s home. Therefore, defendants argue that by delivering the papers to Picard’s brother and then mailing another copy to the same address service was accomplished. See Tejada Decl. at ¶ 9. That may be true, if Tejada actually left the relevant papers with Picard’s brother. The brother, however, has filed a declaration stating that “[t]he man [Tejada] did not leave any papers with me for Derek. The man never came back, and no other person has come to my home to give papers to Derek.” Adam Picard Decl. at ¶¶ 4-6. Accordingly, if Tejada did not leave the papers with the brother, the Proof of Service of Summons was materially false.

Defendants are correct that they enjoy the presumption of valid service. According to that presumption, “[a] signed return of service constitutes prima facie evidence of valid service ‘which can be overcome only by strong and convincing evidence.'” S.E.C. v. Internet Solutions for Bus. Inc., 509 F.3d 1161, 1163 (9th Cir. 2007) (quoting O’Brien v. R.J. O’Brien & Associates, Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)). Plaintiff thus must meet a heightened burden to rebut that presumption. Nonetheless, Picard offers more than just his own declaration that he was not served, he also offers a sworn statement from his brother. See Adam Picard Decl., Dckt. No. 34. While this is not conclusive evidence rebutting the presumption, it is sufficient to establish a genuine issue of material fact as to whether plaintiff has met his burden to rebut the presumption of valid service with “strong and convincing evidence.” As the record currently stands, there is a triable issue of fact as to whether Picard was served. Accordingly, the court DENIES the motion for summary judgment.

For the reasons explained above, the court DENIES the motion for summary judgment.

IT IS SO ORDERED.*11Dated: June 1, 2015


Ronald M. Whyte

United States District Judge

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Posted by on October 12, 2015 in Investigations


General abode service questions for Illinois Private Detective, Process Servers

Substitute Service of Process – Like Father, Like Son?

Is substitute service of process valid if it’s on the defendant’s father, in the defendant’s driveway? Here’s an answer gleaned from the ISBA litigation discussion group.

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Substitute service on the defendant’s father in the defendant’s driveway – is it valid?
David W. Schopp, Aurora. A defendant can be served at his usual place of abode by leaving a copy with a member of the family or person at least 13 years old residing there. Case law says that the family member need not reside there.

But what are your thoughts on this: Defendant’s father (who does not reside with defendant) was served while in his car backing out of defendant’s driveway. Special process server knocks on car window and asks if father is the defendant.

Father says he is John Doe, Sr. and not John Doe, Jr. (the defendant). When asked if father knows the location of defendant, father further states that he did not know where defendant was, even though defendant was also in the car.

1. Was defendant served via substitute service at his usual place of abode?

2. What would be the ramifications, if any, of the father admitting, under oath, that he lied to the special process server?

An ISBA lawyer responds

Fred Nickl, Chicago. Lying to a process server = shoulder shrug. As long as [the father] admits it and doesn’t testify or sign an affidavit that perpetuates the lie.

Abode service: we give a seminar to private detectives and their investigators (process servers) on service. Your question is unique to us, but I would use the cases that say:

• A defendant’s “usual place of abode” is, generally, where that person lives. The key consideration is whether delivering service there is “reasonably likely to provide the respondent with actual notice of the proceedings.” United Bank of Loves Park v. Dohm, 115 Ill. App. 3d 286 (2d Dist. 1983).

• [in arguing that] the property surrounding the residence [i.e., the driveway] is fair game, [note that] the front porch and stairs are fair game already….

• But maybe a better analogy is: One may serve the doorman of the defendant’s apartment building only when the intended recipient is intentionally refusing to come to the lobby to accept service. See Harrell v. Bower Motors, Inc. 2004 WL1745758 (N.D. Ill. July 30, 2004).

Keep in mind:

• The server must inform the person served of the contents of the summons. Tomaszewski v. George, 1 Ill. App. 2d 22 (1st Dist. 1953).

• It is enough to identify the documents (i.e., a summons and complaint), state from which court they were issued, and give the court date. Freund Equipment, Inc. v. Fox, 301 Ill. App. 3d 163 (2d Dist. 1998).

• The server must also later mail a copy of the summons to the defendant. Tomaszewski. However, the person who makes delivery to the abode need not be the same person who mails the documents. Mid-America Federal Savings & Loan Ass’n v. Kosiewicz, 170 Ill. App. 3d 316 (2d Dist. 1988).

• You must send a copy of the complaint and summons to each individual defendant in a separate envelope. Even if the defendants live together, each must be mailed separately. Central Mortgage Co. v. Kamarauli, 2012 IL App. (1st) 112353 (Ill. App. 1st Dist. Nov. 5, 2012).

• Family members (as defined by Anchor Finance Corp. v. Miller):

(1) The whole body of persons who form one household, thus embracing servants;

(2) parents with their children, whether they dwell together or not; and

(3) the whole group of persons closely related by blood.

• Maid or housekeeper is family, Lewis v. West Side Trust & Savings Bank, 286 Ill. App. 130 (1st Dist. 1936).

• Service on in-laws is probably good service. Citimortgage v. Lubowicki.

• Girlfriend/boyfriend? Probably not good service.

• Cousins? Aunts? Uncles? Case law has not determined what “closely related by blood” means in the context of service of process.

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Posted by on October 11, 2015 in Investigations

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