BILL NUMBER: SB 1322 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Ackerman
JANUARY 28, 2002
An act to amend Sections 515.060, 514.020, 515.010, 515.020,
703.580, 703.610, and 715.010 of the Code of Civil Procedure,
relating to debtor and creditor relations.
LEGISLATIVE COUNSEL'S DIGEST
SB 1322, as introduced, Ackerman. Debtor and creditor relations.
(1) Existing law permits a plaintiff to apply for a writ of
possession, which must show, among other things, the basis of the
plaintiff's claim and that the plaintiff is entitled to the property
claimed. Existing law requires a hearing on a noticed motion before
the writ of possession may be issued, except as specified, and
prohibits a court from issuing a writ until the plaintiff posts an
undertaking in a value of at least twice the defendant's interest.
Existing law permits a defendant to post an undertaking to prevent
the seizure of the property or reclaim it.
This bill would provide an alternative procedure for writs of
possession if a court finds that a defendant has no interest in the
property. The bill would require, under these circumstances, that a
court waive the requirement of the plaintiff's undertaking and that
the court determine the amount of the defendant's undertaking, as
specified. The bill would also require a levying officer to deliver
to the person in possession of the property a copy of the court order
for issuance of the writ of possession.
(2) Under the existing Enforcement of Judgments Law, a judgment
creditor may levy upon the property of a judgment debtor to satisfy
the judgment, and the judgment debtor may claim that certain property
is exempt from the levy by following a specified procedure. Under
that existing law, a levying officer holds the property until the
final determination of the exemption.
This bill would require that if an exemption of property, as
described above, is not determined within a specified time, the
property claimed to be exempt shall be released, unless otherwise
ordered by the court. The bill would further permit a levying
officer to release the property described above after an appeal is
waived or the time for filing an appeal has expired.
(3) The existing Enforcement of Judgments Law, requires judgment
debtors to vacate real property wrongfully possessed within 5 days
after the proper service of a specified writ.
This bill would require that the copy of the above-described writ
that is served contain the date and manner of the service of the writ
and the last date to vacate the premises. The bill would further
provide that an error or omission in these entries does not affect
the validity of the service or the writ. By requiring local
officials to enter new information on the copy of the writ served,
and thus perform additional duties, this bill would create a
state-mandated local program.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 512.060 of the Code of Civil Procedure is
amended to read:
512.060. (a) At the hearing, a writ of possession shall issue if
both of the following are found:
(1) The plaintiff has established the probable validity of
his the plaintiff's claim to possession
of the property.
(2) The plaintiff has provided an undertaking
as required by requirements of Section
515.010 are satisfied .
(b) No writ directing the levying officer to enter a private place
to take possession of any property shall be issued unless the
plaintiff has established that there is probable cause to believe
that such the property is located
there.
SEC. 2. Section 514.020 of the Code of Civil Procedure is amended
to read:
514.020. (a) At the time of levy, the levying officer shall
deliver to the person in possession of the property a copy of the
writ of possession with a copy of the plaintiff's undertaking
attached , if any, and a copy of the order
for issuance of the writ .
(b) If no one is in possession of the property at the time of
levy, the levying officer shall subsequently serve the writ and
attached undertaking on the defendant. If the defendant has appeared
in the action, service shall be accomplished in the manner provided
by Chapter 5 (commencing with Section 1010) of Title 14 of
this part . If the defendant has not appeared in the
action, service shall be accomplished in the manner provided for the
service of summons and complaint by Article 3 (commencing with
Section 415.10) of Chapter 4 of Title 5 of this part
.
SEC. 3. Section 515.010 of the Code of Civil Procedure is amended
to read:
515.010. The (a) Except as provided in
subdivision (b), the court shall not issue a temporary
restraining order or a writ of possession until the plaintiff has
filed with the court an undertaking. The undertaking shall provide
that the sureties are bound to the defendant for the return of the
property to the defendant, if return of the property is ordered, and
for the payment to the defendant of any sum recovered against
the plaintiff. The undertaking shall be in an amount not less
than twice the value of the defendant's interest in the
property or in a greater amount. The value of the defendant's
interest in the property is determined by the market value of the
property less the amount due and owing on any conditional sales
contract or security agreement and all liens and encumbrances on the
property, and such any other factors
as may be necessary to determine the defendant's
interest in the property.
(b) If the court finds that the defendant has no interest in the
property, the court shall waive the requirement of the plaintiff's
undertaking and shall include in the order for issuance of the writ
the amount of the defendant's undertaking sufficient to satisfy the
requirements of subdivision (b) of Section 515.020.
SEC. 4. Section 515.020 of the Code of Civil Procedure is amended
to read:
515.020. (a) The defendant may prevent the plaintiff from taking
possession of property pursuant to a writ of possession or regain
possession of property so taken by filing with the court in which the
action was brought an undertaking in an amount equal to the amount
of the plaintiff's undertaking required by
pursuant to subdivision (a) of Section 515.010 or in the
amount determined by the court pursuant to subdivision (b) of Section
515.010. The
(b) The undertaking shall state that, if the plaintiff
recovers judgment on the action, the defendant shall pay all costs
awarded to the plaintiff and all damages that the plaintiff may
sustain by reason of the loss of possession of the property. The
damages recoverable by the plaintiff pursuant to this section shall
include all damages proximately caused by the plaintiff's failure to
gain or retain possession.
(b)
(c) The defendant's undertaking may be filed at any time
before or after levy of the writ of possession. A copy of the
undertaking shall be mailed to the levying officer.
(c)
(d) If an undertaking for redelivery is filed and the
defendant's undertaking is not objected to, the levying officer
shall deliver the property to the defendant, or, if the plaintiff
has previously been given possession of the property, the plaintiff
shall deliver such the property to the
defendant. If an undertaking for redelivery is filed and the
defendant's undertaking is objected to, the provisions of
Section 515.030 apply.
SEC. 5. Section 703.580 of the Code of Civil Procedure is amended
to read:
703.580. (a) The claim of exemption and notice of opposition to
the claim of exemption constitute the pleadings, subject to the power
of the court to permit amendments in the interest of justice.
(b) At a hearing under this section, the exemption claimant has
the burden of proof.
(c) The claim of exemption is deemed controverted by the notice of
opposition to the claim of exemption and both shall be received in
evidence. If no other evidence is offered, the court, if satisfied
that sufficient facts are shown by the claim of exemption (including
the financial statement if one is required) and the notice of
opposition, may make its determination thereon. If not satisfied, the
court shall order the hearing continued for the production of other
evidence, oral or documentary.
(d) At the conclusion of the hearing, the court shall determine by
order whether or not the property is exempt in whole or in part.
Subject to Section 703.600, the order is determinative of the right
of the judgment creditor to apply the property to the satisfaction of
the judgment. No findings are required in a proceeding under this
section.
(e) The court clerk shall promptly transmit a certified copy of
the order to the levying officer. Subject to Section 703.610, the
levying officer shall, in compliance with the order, release the
property or apply the property to the satisfaction of the money
judgment.
(f) Unless otherwise ordered by the court, if an exemption is not
determined within the time provided by Section 703.570, the property
claimed to be exempt shall be released.
SEC. 6. Section 703.610 of the Code of Civil Procedure is amended
to read:
703.610. (a) Except as otherwise provided by statute or
ordered by the court , the levying officer shall not release,
sell, or otherwise dispose of the property for which an exemption is
claimed until the final determination of an
appeal is waived, the time to file an appeal has expired, or
the exemption is finally determined .
(b) At any time while the exemption proceedings are pending, upon
motion of the judgment creditor or a claimant, or upon its own
motion, the court may make such orders for disposition of the
property as may be proper under the circumstances of the case.
Such an The order may be modified or
vacated by the court at any time during the pendency of the exemption
proceedings upon such terms as are just.
(c) If an appeal of the determination of a claim of exemption is
taken, notice of the appeal shall be given to the levying officer and
the levying officer shall hold, release, or dispose of the property
in accordance with the provisions governing enforcement and stay of
enforcement of money judgments pending appeal.
SEC. 7. Section 715.010 of the Code of Civil Procedure is amended
to read:
715.010. (a) A judgment for possession of real property may be
enforced by a writ of possession of real property issued pursuant to
Section 712.010. The application for the writ shall provide a place
to indicate that the writ applies to all tenants, subtenants, if any,
name named claimants, if any, and any
other occupants of the premises.
(b) In addition to the information required by Section 712.020,
the writ of possession of real property shall contain the following:
(1) A description of the real property, possession of which is to
be delivered to the judgment creditor in satisfaction of the
judgment.
(2) A statement that if the real property is not vacated within
five days from the date of service of a copy of the writ on the
occupant or, if the copy of the writ is posted, within five days from
the date a copy of the writ is served on the judgment debtor, the
levying officer will remove the occupants from the real property and
place the judgment creditor in possession. The levying officer
shall enter on the copy of the writ served pursuant to Section
715.020 the date and manner of service and the last date to vacate
the premises. An error or omission in the levying officer's entries
does not affect the validity of the service or the writ.
(3) A statement that any personal property, except a mobilehome,
remaining on the real property after the judgment creditor has been
placed in possession will be sold or otherwise disposed of in
accordance with Section 1174 of the Code of Civil Procedure unless
the judgment debtor or other owner pays the judgment creditor the
reasonable cost of storage and takes possession of the personal
property not later than 15 days after the time the judgment creditor
takes possession of the real property.
(4) The date the complaint was filed in the action which resulted
in the judgment of possession.
(5) The date or dates on which the court will hear objections to
enforcement of a judgment of possession that are filed pursuant to
Section 1174.3, unless a summons, complaint, and prejudgment claim of
right to possession were served upon the occupants in accordance
with Section 415.46.
(6) The daily rental value of the property as of the date the
complaint for unlawful detainer was filed unless a summons,
complaint, and prejudgment claim of right of possession were served
upon the occupants in accordance with Section 415.46.
(7) If a summons, complaint, and prejudgment claim of right to
possession were served upon the occupants in accordance with Section
415.46, a statement that the writ applies to all tenants, subtenants,
if any, named claimants, if any, and any other occupants of the
premises.
(c) At the time the writ of possession is served or posted, the
levying officer shall also serve or post a copy of the form for a
claim of right to possession, unless a summons, complaint, and
prejudgment claim of right to possession were served upon the
occupants in accordance with Section 415.46.
SEC. 8. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.