Saturday, November 10, 2012

Association security guard must let process server enter property

A manager's use of an association security guard to obstruct the serving of a summons is illegal and reflects poor judgment.

(c) Donie Vanitzian, reprinted with permission

QUESTION: In a matter unrelated to our association, the manager of our gated community has been sued by a third party. He also has an office inside our gated community. At our board meeting he said that he had instructed our association's security guards not to let the process server in to serve him and that the party suing him had in fact attempted to serve him but left the summons with the security guard. He was laughing and said that does not mean he has been served as the guard is not "an agent" of his. One owner who has been sued in the past has been served several times by process servers, so the guards do let servers into our complex to serve other people. The manager's defense is that he is the "association agent." Can our management company owner use our association's security guards to avoid being served?

ANSWER: Your management company's owner cannot use your association's security guards to avoid personal service, even though that service is unrelated to your association. Code of Civil Procedure Section 415.21 states "notwithstanding any other provision of law, any person shall be granted access to a gated community for a reasonable period of time for the purpose of performing lawful service of process or service of a subpoena."

It is possible that failure to admit the server could require him or her to notify local law enforcement or, if the process server is a member of the county sheriff's department, to arrest the security guard for interference with the lawful subpoena service. Persons employed by associations, as well as boards or management companies, are not above the law in preventing service of process. Such obstruction subjects them to possible prosecution for interfering with law enforcement and lawful service.

Security guards work at the behest of the association, their employer, and must conform to the rules set forth in the governing documents. They are not there to be manipulated or dictated to by a manager acting under the guise of an "association agent."

The manager's actions and poor judgment call into question the board's performance of its supervisory functions in overseeing all its employees and vendors, including this manager. Actions like these are not only inappropriate, they set a bad precedent for residents in the community. When it appears as if different rules apply to management, it can cause confusion and dissension among owners and residents.
Associations cannot prevent process servers from entering the property, and efforts to do so could result in civil or criminal liability for the board director or employee who ordered the obstruction to entry. This manager's actions should raise a red flag to your board that it's time to examine the manager's actions, perhaps with the idea toward terminating his services.

1 comment:

elizabeth said...

very nice answer you have cleared very honestly.
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