Are Process Servers Allowed To Trespass?
Yes. Registered Process Server Lance Casey & Associates will trespass to serve your legal documents. Gated communities and no trespassing signs don't stop us from service of process. Generally, a process server has no greater authority to enter the property than any member of the general public, however, the purpose of the visit does. Service of process gives a server a privilege, distinguished from a right, to enter the property for the purpose of service. The law requires that service is to be made by delivery, and a process server gives notice to the defendant by that delivery. Once delivered, the service allows the court to exercise its jurisdiction over the party. It meets a due process requirement afforded the defendant under the U.S. Constitution.
A process server may have a defense from a civil trespass claim under a “public officer’s immunity for legal process enforcement” when serving a summons. Although a California private process server is neither a public official nor an officer of the court, the process server is performing a “public function” for a “public purpose” when serving a lawsuit, subpoena, or other process. (See U.S. v. Wiseman, 445 F.2d 792 (1971))
Can Process Servers Trespass?
Penal Code § 602 Trespass
Except as provided in subdivisions (u), (v), and (x), and Section 602.8, every person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor:
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(n) Driving any vehicle, as defined in Section 670 of the Vehicle Code, upon real property belonging to, or lawfully occupied by, another and known not to be open to the general public, without the consent of the owner, the owner’s agent, or the person in lawful possession. This subdivision does not apply to any person described in Section 22350 of the Business and Professions Code who is making a lawful service of process, provided that upon exiting the vehicle, the person proceeds immediately to attempt the service of process, and leaves immediately upon completing the service of process or upon the request of the owner, the owner’s agent, or the person in lawful possession.
Penal Code § 602.8 Trespass
(a) Any person who without the written permission of the landowner, the owner’s agent, or the person in lawful possession of the land, willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands, is guilty of a public offense.
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(c) Subdivision (a) shall not apply to any of the following:
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(2) Any person on the premises who is engaging in activities protected by the California or United States Constitution.
(3) Any person described in Section 22350 of the Business and Professions Code who is making a lawful service of process.
When a server walks onto the property of the defendant to serve, there is a potential for being charged as a trespasser. That can be a civil wrong and/or a criminal act.
This article discusses in general terms criminal but not civil trespass. Although related, that involves a different analysis.
To be criminally culpable in any non-strict liability crime there must be concurrence of both the actus reus (the intentional act) and (mens rea), a guilty mind or intent. Certainly the act of entering onto the property to serve someone is a volitional act, but the purpose of the entry is for making a lawful service and to give notice. If there is no intent to cause criminal harm, or to permanently occupy the property, there is no offense.
Furthermore, a defense to trespass is consent or permission. That may be expressed or implied. If there is a pathway leading to the front door, and a doorbell next to the door, there is an implied consent or permission for the public to enter onto the property and to walk to the porch to ring the doorbell. There may be a discernible area of a business which is open to the public. Entry onto property cannot exceed that consent, expressed or implied, and consent may be revoked.
In civil law, a person walking onto the property is a licensee if they are there with permission of the occupier of the property. Absent a no trespassing sign, that permission is afforded persons there asking for directions, solicitors selling magazine subscriptions, Girl Scouts selling cookies, or those wishing to express religious or political beliefs. (See The Volokh Conspiracy post, SEIU Picketing on Someone’s Front Porch?, citing Keesecker v. G.M. McKelvey Co., 47 N.E.2d 211 (Ohio 1943))