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Timothy D. Smith
Timothy D. Smith, Attorney
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Experience:  10 years practicing IP law and general litigation
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California Civil Harassment Restraining Order statute says

Resolved Question:

California Civil Harassment Restraining Order statute says no fee is to be charged for filing a subpoena in connection with a Petition which raises a credible threat of violence. But police won't accept subpoena to the hearing without deposit of $275 fee. The subpoena is being "served," not "filed." No subpoena is "filed."
What happens if I get delivery of the subpoena to the subpoena clerk at the police station, do not pay the deposit, and the officer does not show up. I tell the judge they were subpoenaed, point out the statute that says no fee required.
Submitted: 1 year ago.
Category: Legal
Expert:  Timothy D. Smith replied 1 year ago.
I hope this message finds you well, present circumstances excluded. The way these competing issues are viewed within the California legal system is somewhat flawed, in my opinion, but is fairly well settled. It is the general understanding that there is no fee for requesting the subpoena and issuance of the subpoena from the court in which the action is filed. This is the "filing" component of the subpoena because it is then a part of the record of the case on file once issued.

There is an allowable fee for the actual service of the subpoena by the law enforcement entity, or sheriff's office. The governmental entity uses this in a few ways: (1) to defray cost associated with the service of process; (2) to fund the law enforcement agency as a source or revenue, and (3) to discourage everyone trying to serve a subpoena on someone from using the sheriff office to do it.

With that being the case, depending on the complexity of the service of process, you should look into private entity process servers. You will likely be able to find a private service that will do it cheaper than the sheriff and likely in a more precise and timely fashion as well.

Let me know if you have any additional questions or comments.

Best wishes going forward.
Customer: replied 1 year ago.

I'm not asking about the cost of service of process. I am going to get someone to serve the police department to have the officer show up as a witness. The Court has already determined that the case can proceed without paying filing fees. That same determination triggers the "no filing fee" for subpoenas; the question is whether I can interpret "filing fee" to be "witness fee."

Expert:  Timothy D. Smith replied 1 year ago.
I see. The answer to whether you can interpret the filing fee to be the witness fee is yes. The fee was recently increased from $150 to $275 per day. I apologize for the confusion. That fee increased to $275 on January 1, 2013.
Customer: replied 1 year ago.

Sorry, the answer is not clear. You interpret Code of Civil Procedure §527.6(w), "No fee shall be paid for a subpoena filed in connection with a petition alleging these acts" to supercede Government Code §68097.2, requiring the deposit? The judge already said subdivision (w) applies, but the police say they won't appear unless I pay the deposit.

Expert:  Timothy D. Smith replied 1 year ago.
That is correct. When a person has inflicted or threatened to inflict violence against the petitioner or stalked the petitioner, the fee is waived. If the officer is served and does not show, then he can be held in contempt of court by the judge. Once again, sorry for the confusion.
Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 2019
Experience: 10 years practicing IP law and general litigation
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