Criminal Liability for Preparing False Proofs of ServiceJune 11, 2015 PSIAdmin Uncategorized
Criminal Liability for Preparing False Proofs of ServiceBy 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: https://psinstitute.com/whatisaproperproofofservice/
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.
LAPD officer faces 3 counts of murder for alleged drunken driving crash on 605 Freeway that killed Riverside family
A Los Angeles police officer was charged with murder, drunken driving and other charges in connection with a fiery wreck on the 605 Freeway last September near Whittier that killed a Riverside family of three, authorities announced Friday.
The car carrying Mario Davila, 60, Maribel Davila, 52, and their 19-year-old son, Oscar Davila, became engulfed in flames following the crash. They could not escape the vehicle, and died at the scene.
The officer, Edgar Verduzco, 27, of Santa Ana, was injured in the three-car crash along with Berly Alvarado, 32, of Wilmington who was driving the other car he hit. The CHP said Alvarado’s 1-year-old son was not injured.
Verduzco, who was arrested in Long Beach on Friday, appeared in a Los Angeles court later in the day to be arraigned on three counts of murder, three counts of vehicular manslaughter while intoxicated, one count of driving under the influence causing injury and one count of driving with a 0.08 percent blood-alcohol content causing injury.
But the arraignment was continued to May 16, according to Greg Risling, spokesman for the Los Angeles County District Attorney’s Office. He said Verduzco faces a maximum sentence of life in prison if convicted of all the charges.Expla
Explaining why Verduzco was charged with murder instead of lesser charges, Risling said that Verduzco’s training and experiences as an officer made him aware of the dangers of reckless driving and driving under the influence.
The case stems from the Sept. 26, 2017 crash on the southbound 605 Freeway, south of Saragosa Street, in the unincorporated community of West Whittier.
L.A. sheriff's narcotics detective accused of involvement in drug-trafficking operation can't be fired, court says
April 10, 2018 06:24 PM
Updated 8 hours 17 minutes ago
Sacramento Police Chief Daniel Hahn told the City Council on Tuesday that "our community is crying out for change" following the shooting death of an unarmed black man in Meadowview last month at the hands of two of his officers.
The meeting began with Stephon Clark’s brother helping to lead a packed City Council Chambers in prayer. There were tense moments – one protester was removed from the City Council Chambers by police – but the hearing was peaceful.
Hahn vowed that his department would make the policy changes necessary to ensure “tragic situations like what happened March 18 don’t happen again.”
Clark was shot March 18 by officers pursuing a man suspected of breaking car windows. Officers said they thought Clark had a gun when they fired 20 shots, but Clark was found with only his cellphone. He was killed in a backyard later determined to be his grandparents' house.
Hahn, who grew up in Oak Park and is the city’s first black police chief, spoke quietly with Clark’s brother, Stevante, before the meeting began. Clark placed his arm around Hahn’s shoulder, then invited him to join a small group of pastors at the front of the room for a prayer. As the pastors spoke, Mayor Darrell Steinberg and the members of the City Council held hands and bowed their heads.
Nearly two hours into the hearing, Stevante Clark walked into the chambers and sat in a chair next to a podium where Hahn was addressing the City Council. He put his feet up on a desk, but then moved to a seat in the audience. Addressing the council a few minutes later, Clark urged the media to stop showing police video footage of his brother being shot and killed.
Two weeks ago, Stevante Clark leaped onto the council dais and onto the lectern. He told Steinberg several times to shut up as the mayor shouted his name to get his attention, and the meeting soo
List of police-related slang termsFrom Wikipedia, the free encyclopediaThis article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and remo
IJConduct, EOIR (EOIR)2:49 PM (6 hours ago)to me, Dear Mr. Noh: Thank you for bringing your concerns to our attention. Your complaint of March 27, 2018, is currently under revi
motion to dismiss judge under perjury and prejudiceInboxxSteve Noh <firstname.lastname@example.org>Mar 29 (11 days ago)
to EVA.M.VIVAS, eoir.ijconduct
*Motion of Dismissal of Judge and my attorney under Prejudice and
Incompetence and Perjury 1. I was qualified for Franco-Gonzales Class
Action Member, and got assigned with atty Laurel Esterle who backstabbed me
citing the reason I am seeking Asylum was: “South korean
prosecutes for being a gay” (this statement was a fraud, I never said it
and all immigration atty know it), and she placed me into Sex Offender
House with $750/month where Foods were not compatible with my diabetes diet
requirement and it is a crooky house.2.after this complaint,, her
supervisor , mr Pena who got on my case by replacing ms Esterle,but never
contacted me ,but lied in the court that Judge-ordered housing and med care
requirement assured /helped on my case...None happened, even after 3
years3.one day, Judge asked me tough a dozen of questions while mr. Pena(my
atty) was sitting right next to me. She did not ask any question to my
atty. I am diagnosed with Schizophrenia4.and I filed multiple complaints
against Newly assigned executive director at Immdef.org, her name is
Lindsay who never returned my emails of 300, some of them are very
important in my immigration appeal5.Judge DENIED MY ATTEMPT TO DISMISS
JUDGE TWICE AND DISMISS OF MY ATTY 4 TIMES. SHE WILL NOT LET ME GO FORWARD
WITH DISMISSAL PROCEDURES… THAT IS MY CIVIL RIGHT VIOLATION. She did not
allow me to speak ZERO, including “open door proceeding” (she denied)6.now
ePath.org( homeless advocacy) group ( manager
Ann_________________________)(Ricky______________________) and Public
Counsel Atty(Tyra McGrey) and DMH and Special-Need Older Adult Group(Will
Chau______________) are trying to get me my housing which has been reserved
for me over last several months7. My immigration atty and my immigration
office(mr. Majia) and his supervisor (viva) are not helping me with
housing, which JUDGE ordered so many times. That is why Jose Parra from my
atty office was assigned to help me with housing, he indeed secured a
shelter at LAMP(mental ill and critically ill homeless shelter).However due
to my Atty’s unethical work, Jose quitted his job at that law office.I, hee
young noh, is a victim of 2012 and 2014 LAPD corruption.LAC DA Just
Integrity Unit(974-5010) and LAPD police commission(ms debra green) and
LAFD internal affair have been investigated but not by LAPD internal affair
until last monthHowever my atty did not requrest U-Visa from all above
‘investigating org’In summary, I should have been granted on u-visa long
ago, but Judge and my 3 attorneys are playing Perjury and Deception and
Incompetence. I wish to dismiss both. Thanks Hee Young Noh(A# 205 314
100 ), contact 213-909-8456 <(213)%20909-8456>Pobox
74074.LA <http://74074.la/>,Ca90004, DrNoh007@gmail.com
<DrNoh007@gmail.com>signed and dated
The Clark family has accused the police department of trying to cover up misconduct by its officers and decided to conduct its own autopsy.
In the wake of Clark’s death, there are deafening calls from the community for more transparency and accountability regarding the investigation into his death. These calls also include getting answers to the lingering question of why the officers decided to mute their audio. Ironically, the one group put into place to be a link among the community, City Hall and the police won’t be able to help.
The 11-member Sacramento Community Police Review Commission was established in 2017 by the city council last year as part of a package of police reforms after the community complained that a previous version of the commission didn’t have enough oversight capabilities.
But like most citizen watchdog groups established by mayors and city councils in cities in the wake of mounting concern over the question of “Who polices the police?” the Sacramento Community Police Review Commission is merely advisory.
Most independent oversight commissions lack independence. They are unable to conduct their own investigations, subpoena records or to compel the testimony of police officers and their superiors accused of wrongdoing.
In Los Angeles, efforts have begun to change the charter of the county via ballot measure to provide its Civilian Oversight Commission with subpoena power to effectively investigate deputy misconduct. The Reform Jails and Community Reinvestment Initiative seeks to ensure that the Los Angeles County Board of Supervisors, the governing body for America’s most populous county and largest jail system, invests some of the $3.5 billion planned for building new jails into providing alternatives to incarceration.
Proponents need to gather more than 150,000 signatures of registered voters to place it on the highly coveted November gubernatorial ballot. The reform effort will not affect the Los Angeles Police Department, which has a separate police commission.
Civic engagement is incredibly important for the health of a community. The Reform Jails and Community Reinvestment Initiative puts the conversation of police accountability and alternatives to incarceration into the hands of the voters in L.A. County.
This is necessary because there has been misconduct, most notably with former Sheriff Lee Baca and his undersheriff Paul Tanaka, who were both convicted of conspiracy and obstructing an FBI investigation into deputy jail abuses.
We realize that to re-establish trust, we must create an oversight body for the Sheriff’s Department in L.A. County that serves to foster dialogue, feedback and shared knowledge between the community and the police.
Civilian oversight bodies are put into place because the public has lost faith in their scandal-ridden, beleaguered police departments. But these groups often end up being more of a conciliatory gesture from local governments to placate the public in troubled times. They are prevented from doing the very work that both city officials and police departments claim they want to be done — improving public accountability and transparency.
IF YOU LIKE THIS STORY, CONSIDER SIGNING UP FOR OUR EMAIL NEWSLETTERS.SHOW ME HOWTo root out misconduct, bring about real criminal justice reform and avoid having Bonnie investigate Clyde, these civilian bodies that hold the trust of the public must have two things — independence and power. Without it, they’re just for show. Oversight with no site. Oversight with no bite.
Reform L.A. Jails will hold a campaign kickoff for its signature-gathering drive on Saturday, April 7, at noon at Mercado La Paloma, 3655 S. Grand Ave. More information at reformlajails.com.
Jasmyne Cannick is a nationally known writer and commentator on political, race and social issues. She is a political consultant working on the L.A. County ballot measure to Reform L.A. Jails.
Patrisse Cullors is the New York Times best-selling author of When They Call You a Terrorist and the co-founder of Black Lives Matter, Dignity and Power Now, and JusticeLA. She is a proponent of the Reform L.A. County ballot measure to provide subpoena power to the Los Angeles County Sheriff’s Department’s Civilian Oversight Commission.